Wednesday, September 30, 2009

Ind. Law - More on: "Did an amendment to this year’s state budget open the door to tax refunds for nursing homes across the state?"

Updating this ILB entry from earlier today, I've tried my hand at reading SECTION 479. Here is what I've come up with. If you have a different take, let me know. (None of this will make any sense, of course, if you haven't read this entry and this one):

What does SECTION 479 do?

(a) It applies to any "entity" that failed to file a timely application for an exemption under IC 6-1.1-10-16, or to sufficicently justify such an application, for any assessment date after March 1, 2000.

And it applies to any part of the entity's property that would have qualified for the IC 6-1.1-10-16 exemption (as property owned, occupied, and predominantly use for a charitable purpose) if the application had been timely filed.

(b) An entity described in subsection (a) may, before September 1, 2009, file or refile with the county assessor an application for a property tax exemption under IC 6-1.1-10-16 for an assessment date occurring after March 1, 2000, and before March 1, 2010. (So the time to file under this SECTION has already passed, there was a brief two-month "window" that somehow a number of people knew about.)

(d) Part of this subsection (d), starting with "During the pendency ..." might be read to mean that if you apply under this SECTION 479 (presumably during the two-month window), you can't be dunned for the taxes (and remember these include taxes back to 2000), and no action may be taken to sell the property at tax sale, during the pendency of the proceedings, whether in the end you qualify or not. Furthermore: "No interest or penalty shall be imposed on any tax liability remaining after the application of the exemption for any period before the taxes are due as provided in this subsection."

Ind. Courts - More on: DOJ Files Lawsuit Against Indianapolis Law Firm to Enforce the Employment Rights of Indiana Army National Guardsman

WASHINGTON, March 16 /PRNewswire-USNewswire/ -- The Department of Justice today filed a lawsuit in U.S. District Court in Indianapolis on behalf of Mathew B. Jeffries, an Indiana National Guard member, against the Indianapolis law firm of Mike Norris & Associates, alleging that the law firm refused to promptly reemploy Jeffries in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

Today the DOJ has issued a new release that begins:

WASHINGTON – The United States has entered into a consent decree with the Indianapolis law firm of Mike Norris & Associates that, if approved in federal court in Indianapolis, will resolve the Justice Department’s March 16, 2009, complaint on behalf of an Indiana National Guardsman alleging that the law firm violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), the Justice Department announced today. Under the terms of the consent decree, the law firm must provide the National Guardsman, Mathew B. Jeffries, with $40,000 to compensate him for his lost wages and accrued interest.

Updating this ILB entry from May 9, 2009, in which the Indy Star is quoted as reporting:

A New Jersey man has asked the Indiana Supreme Court to reconsider its unanimous ruling overturning his adoption of twin girls born in Indianapolis.

The justices sent the case back to Hamilton Superior Court last month with orders to review the adoption in line with interstate adoption rules. The 4-year-old girls will remain with Stephen F. Melinger, 62, in the meantime.

The Supreme Court late yesterday issued thisPublished Order Denying Rehearing.

Of particular note from the Order is this paragraph:

Counsel’s petition also asks that we give directives on the multiple motions, requests, and objections recently filed in the trial courts by both parties. These seem to have been prompted partly by our ruling in this appeal and partly by the fact that New Jersey’s child protection authorities have initiated a CHINS proceeding and removed the children from Petitioner’s care.

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

Appellant/Defendant Arturo Garcia-Torres appeals from his convictions for Rape, two counts of Burglary, and Attempted Rape, all as Class B felonies. Concluding that (1) the taking of a cheek swab for purposes of extracting a DNA profile is a search requiring reasonable suspicion, and not probable cause, under the Indiana and federal constitutions; (2) police had reasonable suspicion to take a cheek swab from Garcia-Torres; (3) the taking of a cheek swab is not subject to the advice-of-counsel requirements of Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975); (4) the DNA evidence obtained from Garcia-Torres was not inextricably bound to his suppressed confession; and (5) the charges against Garcia-Torres were properly joined, we affirm. * * *

On the question of whether the trial court abused its discretion in admitting evidence generated by the cheek swab performed on Garcia-Torres, we conclude that was justified under the Fourth Amendment by the existence of reasonable suspicion. We further conclude that cheek swabs performed for the purpose of obtaining a DNA sample, while searches under Article I, Section 11, of the Indiana Constitution, are not subject to the advice requirements of Pirtle. Finally, we conclude that the DNA evidence was not inextricably bound to Garcia-Torres‘s confessions that were suppressed on other grounds. The trial court, therefore, did not abuse its discretion in admitting evidence related to the DNA profile obtained through the cheek swab.

On the question of whether the trial court correctly allowed the State to join all of the charges against Garcia-Torres, we conclude first that the charges were not joined solely on the basis that they were of the same or similar character. The totality of the evidence regarding the manner in which the crimes were committed, along with the discovery of Garcia-Torres‘s DNA at both scenes, constitutes a signature sufficient to establish a ―series of acts connected together‖ for purposes of Indiana Code section 35-34-1-9(a). Moreover, we conclude that Garcia-Torres has failed to establish that the trial court abused its discretion in declining to sever the charges against him.

The judgment of the trial court is affirmed.

BROWN, J, concurs.
CRONE, J., dissents with opinion. [with an opinion that begins, at p. 20] I believe that the taking of a cheek swab from a custodial suspect for purposes of extracting a DNA profile is a search requiring probable cause under the Fourth Amendment and is subject to the advice-of-counsel requirements of Pirtle. As such, I conclude that the trial court committed reversible error in admitting the DNA evidence obtained from Garcia-Torres‘s cheek swab in this case. Also, I believe that Garcia-Torres was entitled to severance of the charges against him as a matter of right. Therefore, I respectfully dissent.

The knock and talk investigation did not violate Brown's rights under the Fourth Amendment to the United States Constitution or Article 1, section 11 of the Indiana Constitution. The search of Brown's residence did not violate either Constitution because Brown was not in custody and he voluntarily consented to the search. Therefore, the trial court properly admitted the drugs and paraphernalia. Brown's convictions are affirmed.

DARDEN, J., concurs.
MATHIAS, J., dissents with opinion. [which begins, at p. 16] I respectfully dissent from the majority's conclusion that the knock and talk investigation and resulting search of Brown's residence were reasonable and not in violation of Article 1, Section 11 of the Indiana Constitution.

As our court has observed, the knock and talk procedure "'pushes the envelope' and can easily be misused." Hayes v. State, 794 N.E.2d 492, 497 (Ind. Ct. App. 2003), trans. denied. "Knock and talk might more aptly be named 'knock and enter,' because it is usually the officer's goal not merely to talk but to conduct a warrantless search of the premises."

We reverse the trial court’s order to the extent it requires a twenty percent change in the support obligation before awarding a portion of the windfall bonus as child support. On remand, the trial court shall calculate the appropriate amount of support due as a result of the recent windfall bonus. While ultimately within the trial court’s discretion, we observe that application of one of the methods suggested in the Guidelines may be helpful in this regard. Judgment reversed and remanded.

RILEY, J., concurs.
BAKER, C.J., dissents with separate opinion. [which begins, at p. 8] Although I concur with the result reached by the majority on the abatement issue, I respectfully dissent from its conclusion regarding the semiannual windfall bonuses.

NFP civil opinions today (5):

Melissa Ungar v. Don Hitchcock and Jean Hitchcock (NFP) - "Melissa Ungar appeals a trial court judgment denying her claims for monetary and injunctive relief against her neighbors, Don and Jean Hitchcock, for the alleged encroachment of their deck on her property. The dispositive issue is whether the trial court erred in concluding that Ungar failed to meet her burden of establishing that the Hitchcocks encroached on her property by constructing their deck in violation of the local zoning ordinance. We affirm."

Ind. Law - "Did an amendment to this year’s state budget open the door to tax refunds for nursing homes across the state?"

Following up on this ILB entry from Sept. 24th, quoting from a story by Jennifer Tangeman of the Logansport Pharos-Tribune, today the Fort Wayne Journal Gazette has this story, by Amanda Iacone, headed "Exemption for charity roils budget: For-profits seek tax break, too."

After last week's story, I'd hoped to learn some specifics, but so far that hasn't been the case. The Association of Indiana Counties is meeting this week, and I've heard the assessors are talking a lot about this, but no details. Can you help?

A section in the state budget has caused confusion on whether for-profit hospitals and nursing homes are exempt from property taxes.

At stake in Allen County is an estimated $30 million in back taxes and a possible future shift in how local government is funded. But a local state lawmaker said there should be no confusion, because lawmakers did not give businesses a break from property taxes.

The budget measure, which took effect this summer, gave charitable organizations until September to seek exemptions from property taxes and to recoup any taxes they paid during the past nine years if they were eligible for exemption during that time.

Nursing homes and hospitals have filed, too, hoping to be considered charities

In Allen County, exemptions were filed for more than 700 properties worth an estimated $1.5 billion in assessed value, according to the assessor’s office.

In addition to numerous nursing homes, exemption paperwork has been filed for the three hospitals owned by Lutheran Health Network. Parkview Health System’s two hospitals are already exempt from property taxes.

For-profit Lutheran is one of the top-paying property owners in the county with a $4.5 million tax bill this year. Reducing its share of property taxes could place more burden on other taxpayers.

But Chief Executive Officer Mike Schatzlein said the network’s accountants filed the paperwork to protect the company in case its charity care could help shrink its tax bill, not eliminate it. The company sought no more than 5 percent reimbursement, and the move was not meant to alter the business’s operating strategy, he said.

“People need to be aware of what’s at stake,” O’Day said. “This could affect everybody, because the burden will shift.”

State law defines which classes of properties are eligible to be exempt from property taxes. Schools, churches and charitable organizations like the YMCA are all exempt. The law also allows some health centers and homes for the aged who give charity care to be exempt.

But charities and non-profits sometimes miss filing deadlines or make mistakes on the paperwork and are denied their exemptions.

Over the years, the state legislature has periodically given those charities a reprieve, and the law passed this year aimed to be a permanent fix for those organizations – an idea urged by many legislators, said Rep. Jeff Espich, R-Uniondale.

In Allen County, not all of the 700 properties will qualify as a charitable organization. The county’s property tax assessment board of appeals will decide whether properties meet that definition and are exempt, O’Day said.

The word “charitable” is open to interpretation, and county officials are trying to understand what it means under state law, she said.

County officials plan to take their time in making those decisions in part because state lawmakers might change the law, O’Day said.

Espich said he is upset by what he’s hearing and doesn’t believe lawmakers created a loophole. But he’s ready to fix the problem and clear up any ambiguities, he said.

“I don’t know how these nursing homes believed they deserved that. Because our legal experts tell me that’s not true,” he said of the sought-after exemptions. “We tend to believe that some eager CPA firm or law firm or both has found this as a way they might in fact offer their services and/or secure clients.”

In my entry last week I wrote:

Where is this alleged exemption language? I've looked through the massive "budget" bill, HEA 1001ss. So far, the only thing that looks to be close is SECTION 479, a noncode provision.

But I wasn't at all sure this was it, because I didn't read it as applicable to for profits. Today's JG story quotes the same section, but I don't know how they came upon SECTION 479.
MORE about SECTION 479: This is a non-code section, meaning, as I have written many times before, that it will not be printed in the Indiana Code and will not be generally accessible to the public. It is available in this 511-page "budget bill" enacted at the last day (June 30) of the 2009 special session. It begins on p. 486.

Ind. Decisions - "Hospital rezoning opponents lose appeal" [Updated]

Yesterday's Court of Appeals decision in the case of Liberty Landowners Assn. v. Porter County Commissioners, et al (ILBsummary here - 2nd case) is the subject of a story today in the Gary Post Tribune:

The homeowners' association trying to block Porter hospital from building at its new site has lost its appeal to the state.

Liberty Landowners Association had sued the Porter County commissioners and Northwest Indiana Health Care System, which owns the hospital, to keep them from building a new facility at the northwest corner of U.S. 6 and Indiana 49. Porter County Judge A. James Sarkisian ruled in April against the association, which represents property owners in Liberty Township, saying that because the association does not own land in the area, it didn't have the right to sue.

The Indiana Court of Appeals upheld that ruling Tuesday. According to its opinion, previous attempts by land associations have not been valid because of the same reason, and Liberty Landowners did not distinguish itself from those previous groups.

Liberty Landowners was established in 1983 as a not-for-profit group to protect local rural life. Members were concerned that the new hospital would bring other businesses, such as pharmacies and fast food restaurants.

According to Indiana law, only landowners who have property near land being rezoned have the right to appeal, the opinion said.

The Porter County commissioners agreed in February 2008 to rezone the 75 acres from residential to institutional. The new hospital is meant to replace the current facility in Valparaiso.

[Updated]The Chesterton Tribune now has posted a long story by Vicki Urbanik on yesterday's decision. Some quotes:

The Liberty Landowners Association has lost its appeal of a county court ruling that found that the citizen group doesn’t have the legal standing to try to block Porter Health System from building its new hospital at U.S. 6 and Ind. 49.

In a ruling Tuesday, the Indiana Court of Appeals concurred with a decision by Porter County Circuit Court Judge Pro Tem James Sarkisian, who in April dismissed the Liberty Landowners’ lawsuit against the Porter County Commissioners and the hospital, known in the case as Northwest Health System.

The landowners filed suit after the county commissioners’ 2-1 decision to rezone the Liberty Township parcel from Residential to Institutional, arguing that the new zoning violated the county’s Unified Development Ordinance.

Sarkisian found that because the Liberty Landowners do not own adjoining property to the hospital site, they lack legal standing to sue over the rezoning.

The court of appeals concurred. “With regard to zoning cases, it is well settled that standing to challenge a rezoning ordinance requires a property right or some other personal right and a pecuniary injury common to the community as a whole,” the appeals court ruling says.

The ruling cites two local cases that involved the issue of standing and what constitutes an “aggrieved party.”

In a case involving Beverly Shores resident George Bagnall and the town of Beverly Shores, the Indiana Supreme Court found that a person must be “aggrieved” in order to have standing to seek judicial review of a board of zoning appeals’ decision, and that to be aggrieved, a person must experience a “substantial grievance” that involves the loss of personal or property right.

In the 1989 case involving Charlotte Robertson’s legal fight with the Chesterton Board of Zoning Appeals over the Lake Erie Land development, the Court of Appeals found that a party seeking to petition the courts on behalf of a community “must show some special injury other than that sustained by the community as a whole.”

Tuesday’s decision cites other cases, such as one heard by the Indiana Supreme Court, which found that a landowner whose property line was less than a mile from a proposed confined animal feeding operation was found to not meet the definition of an “aggrieved party.”

In its appeal, the Liberty Landowners argued that its claim challenging the rezoning complies with the “public standing doctrine,” which is an exception to the general requirement that a plaintiff must have a specific interest in the outcome of a case. However, the Court of Appeals said that the landowners did not raise this public standing issue during the trial court and thus waived the issue. Even with public standing, the court ruled, claimants must still have some property right or pecuniary interest.

The court concluded that the Liberty Landowners do not own property, pay no taxes, and have no legal right that has been put into jeopardy by the commissioners’ rezoning decision. “In other words, Liberty Landowners has not alleged any direct harm and has not been denied any rights,” said the court ruling.

This morning, the Liberty Landowners’ attorney, Martin Lucas, said the landowners can now opt for a rehearing before the Court of Appeals or seek to transfer the case to the Indiana Supreme Court. He said he does not yet know if the landowners will opt to continue the case but did say that the time period for them to act is relatively short before Tuesday’s ruling becomes final.

Courts - The SCOTUS has granted cert in a number of cases, including an Indiana federal case

Includng three from the 7th Circuit, one on the right to bear arms and its application to ordinances prohibiting possession of handguns in the home, and one on ex post facto implications of the Sex Offender Registration and Notification Act’s enactment. The third is on the deadline for filing certain EEOC charges.

[I'll be adding more to this entry during the day.]
"Supreme Court returns to firearms fray" reports Joan Biskupic in USA Today. From the story:

WASHINGTON — The U.S. Supreme Court announced Wednesday it will return to the controversy over individual gun rights by hearing an appeal from a group of firearms owners in Chicago.

They are challenging a lower appeals court ruling that said the Second Amendment guarantees an individual right to guns only in the face of federal regulation, not against state and municipal restrictions.

Included among 10 new disputes the justices added to their calendar Wednesday for the upcoming 2009-10 term, which begins next Monday, the guns case brings the court back to a sensational topic that pits uniquely American notions of frontier liberty against contemporary worries over urban violence. * * *

The new dispute began in Chicago, which has a handgun ban similar to a Washington, D.C., ordinance that the Supreme Court struck down in June 2008 as a violation of the Second Amendment. In the 2008 case, District of Columbia v. Heller, the Supreme Court for the first time declared an individual right to firearms for self-defense and rejected a prevailing lower court view that the Second Amendment applied only to state "militia," such as National Guard units.

But the 5-4 decision left open a crucial question that could have more practical consequences for gun owners and for the states that would regulate them: Does the Second Amendment apply to the states and localities as it does to federal jurisdiction of Washington, D.C.?

Because the Supreme Court has so rarely taken up Second Amendment cases, the amendment's coverage in the states has never been fully determined — unlike the breadth of many of the other of the first 10 amendments to the Constitution, known as the Bill of Rights.

Thirty-four states [ILB - including Indiana] had asked the Supreme Court to take up the gun advocates' appeals and a separate one filed by the National Rifle Association against Chicago. (The justices did not act on that petition Wednesday.) Led by Texas state lawyers, 33 of the 34 states said in a joint filing, "Without this court's review (of the Chicago cases), millions of Americans may be deprived of their Second Amendment right to keep and bear arms." California separately urged the court to take the Chicago disputes. * * *

Chicago adopted its handgun ban in 1982, city officials told the high court, because of a rise in firearms-related deaths and because officials believed handguns were playing "a major role in the commission of homicide, aggravated assaults and armed robbery."

The legal dispute specifically tests whether the Second Amendment — written more than two centuries ago to cover only the federal government — may be extended to the states, as the First Amendment and many other protections of the Bill of Rights have been through 20th Century court rulings.

The U.S. Court of Appeals for the 7th Circuit, which covers Illinois, Wisconsin and Indiana, said the Second Amendment does not apply to the states. The appeals court stressed that the historical view of the Supreme Court was the amendment restricted the powers of the federal government. * * *

The case, McDonald v. City of Chicago, is likely to be scheduled for January. A decision would come before the end of the term in late June 2010.

"Court to decide if sex offenders who didn't register in past can get enhanced penalties now" reports the AP in a brief story. The case is Carr v. United States. From the story:

The Supreme Court will decide whether sex offenders who didn't register with state officials before harsher punishments went into effect can still be sentenced to extra time in prison. * * *

[T]he 7th Circuit Court of Appeals in Chicago said that when the law was passed, Congress did not say it did not apply retroactively. Other courts have said that the law — SORNA — cannot be applied retroactively.

The WSJ Law Blog has posted this entry on the Supreme Court's decision to hear the Chicago gun case, headed "Gaga Over Gun Control: High Court to Hear Second Case."

[More]Thomas v. Carr, the sex offender case, is out of the ND Indiana. See this ILB entry from Dec. 22, 2008, headed "7th Circuit decides two Indiana cases today, in one opinion ."

Ind. Law - Two stories on Indiana meth laws

This very long story by Lisa Trigg in the Terre Haute Tribune Star, from Sept. 3rd, is headed "Wabash Valley woman didn’t realize second cold medicine purchase violated drug laws." Some quotes:

CLINTON — When Sally Harpold bought cold medicine for her family back in March, she never dreamed that four months later she would end up in handcuffs.

Now, Harpold is trying to clear her name of criminal charges, and she is speaking out in hopes that a law will change so others won’t endure the same embarrassment she still is facing.

“This is a very traumatic experience,” Harpold said.

Harpold is a grandmother of triplets who bought one box of Zyrtec-D cold medicine for her husband at a Rockville pharmacy. Less than seven days later, she bought a box of Mucinex-D cold medicine for her adult daughter at a Clinton pharmacy, thereby purchasing 3.6 grams total of pseudoephedrine in a week’s time.

Those two purchases put her in violation of Indiana law 35-48-4-14.7, which restricts the sale of ephedrine and pseudoephedrine, or PSE, products to no more than 3.0 grams within any seven-day period.

When the police came knocking at the door of Harpold’s Parke County residence on July 30, she was arrested on a Vermillion County warrant for a class-C misdemeanor, which carries a sentence of up to 60 days in jail and up to a $500 fine. But through a deferral program offered by Vermillion County Prosecutor Nina Alexander, the charge could be wiped from Harpold’s record by mid-September.

Harpold’s story is one that concerns some law-abiding citizens who fear that innocent people will get mistakenly caught in the net of meth abuse roundups.

But the flip side of the story comes from the law enforcement arena, which is battling a resurgence in methamphetamine production in the Wabash Valley.

As the 12th-smallest county in the state, Vermillion County ranked as the state’s fifth-largest producer of methamphetamine just a few years ago.

“I don’t want to go there again,” Alexander told the Tribune-Star, recalling how the manufacture and abuse of methamphetamine ravaged the tiny county and its families.

While the law was written with the intent of stopping people from purchasing large quantities of drugs to make methamphetamine, the law does not say the purchase must be made with the intent to make meth.

“The law does not make this distinction,” Alexander said.

If the law said “with intent to manufacture methamphetamine,” no one could be arrested until it was proven that the drug actually was used to make meth, the prosecutor said.

And that certainly wasn’t the intent of the law, either. It was written to limit access to the key ingredient in meth — pseudoephedrine — and thereby to stop the clandestine “mom and pop” meth labs that were cooking drugs throughout the area.

Just as with any law, the public has the responsibility to know what is legal and what is not, and ignorance of the law is no excuse, the prosecutor said.

“I’m simply enforcing the law as it was written,” Alexander said. * * *

And Vigo County Sheriff Jon Marvel, who recently renewed efforts to track pseudoephedrine sales in the Wabash Valley, understands Harpold’s arrest is embarrassing for her.

“Sometimes mistakes happen,” Marvel said. “It’s unfortunate. But for the good of everyone, the law was put into effect.

“I feel for her, but if she could go to one of the area hospitals and see a baby born to a meth-addicted mother …”

PLYMOUTH — Landlords have learned that cleaning up after a meth bust could cost anywhere from $3,500 to $35,000.

With Indiana rated No. 2 in the United States for meth busts, that’s a lot of cleanup falling on property owner’s shoulders.

In 2008 alone, there were over a thousand meth busts in Indiana.

But since 2006, when the state cleanup rule on meth went into effect, only 81 decontamination certificates have been issued.

That means homes and apartments are either being abandoned, destroyed or reoccupied by unsuspecting occupants.

“The easiest thing to do is demolish the structure,” said Phillip Ball, a state-qualified decontamination inspector from Aegis Environmental.

Ball was the guest speaker at Plymouth Mayor Mark Senter’s anti-meth commission meeting. Landlords were invited to learn what to do after a meth bust.

And landlords are indeed worried.

“If I had a property involved in a meth bust, I’d just stop renting and paying taxes on it,” said Plymouth landlord Gerrard Wilson.

“What would that do for the state? Landlords need some kind of protection.”

That’s exactly what is happening, said Ball. With cleanup costs more than what the property is worth, people are walking away and abandoning properties.

“Banks end up with contaminated properties and with lists piled high of foreclosures, the properties are getting sold,” Ball said.

Although police take away the bulk of chemicals after a meth bust, what is left behind are chemical and drug residues on surfaces, sinks, drains and ventilation systems.

Failure to follow state guidelines for cleanup could result in a liability down the road, when a baby is born with birth defects caused by meth residue, Ball said.

“The long-term effects could be like asbestos was 30 years ago,” said Ball. “Exposure to asbestos caused mesothelioma and meth residue may also cause cancer, but not enough time has passed to study chronic effects.” * * *

The Indiana Department of Environmental Management’s rule on cleanup says qualified inspectors must be used for testing.

The law offers no recourse for property owners stuck with the bill, and enforcement of the law was left to local health departments, many of which don’t have the resources to monitor contaminated properties.

Law - Yet more on "Amazon's Kindle to Sell Law Books" and the implications

When the University announced its Kindle e-reader pilot program last May, administrators seemed cautiously optimistic that the e-readers would both be sustainable and serve as a valuable academic tool. But less than two weeks after 50 students received the free Kindle DX e-readers, many of them said they were dissatisfied and uncomfortable with the devices.

On Wednesday, the University revealed that students in three courses — WWS 325: Civil Society and Public Policy, WWS 555A: U.S. Policy and Diplomacy in the Middle East, and CLA 546: Religion and Magic in Ancient Rome — were given a new Kindle DX containing their course readings for the semester. The University had announced last May it was partnering with Amazon.com, founded by Jeff Bezos ’86, to provide students and faculty members with the e-readers as part of a sustainability initiative to conserve paper.

But though they acknowledged some benefits of the new technology, many students and faculty in the three courses said they found the Kindles disappointing and difficult to use.

“I hate to sound like a Luddite, but this technology is a poor excuse of an academic tool,” said Aaron Horvath ’10, a student in Civil Society and Public Policy. “It’s clunky, slow and a real pain to operate.”

Horvath said that using the Kindle has required completely changing the way he completes his coursework.

“Much of my learning comes from a physical interaction with the text: bookmarks, highlights, page-tearing, sticky notes and other marks representing the importance of certain passages — not to mention margin notes, where most of my paper ideas come from and interaction with the material occurs,” he explained. “All these things have been lost, and if not lost they’re too slow to keep up with my thinking, and the ‘features’ have been rendered useless.”

Ind. Decisions - Court of Appeals issues 2 today (and 0 NFP)

In this consolidated appeal, Scott Ruse (“Ruse”) appeals after a bench trial from the trial court's judgment in favor of Mark Bleeke (“Bleeke”) in his action against Ruse alleging claims under the Indiana Crime Victim's Relief Act, fraud, and breach of fiduciary duty. Ruse also appeals after a bench trial from the trial court's judgment in favor of Terry Parrish (“Parrish”) in an action brought by Ruse against Parrish alleging breach of contract and criminal conversion. The broad issue presented for our review from these judgments is whether there is sufficient evidence to support the findings of fact and conclusions thereon issued in both judgments against Ruse. Parrish cross-appeals arguing that if we find the trial court erred during the bench trial, he should have been entitled to summary judgment. We affirm.

Appellant-plaintiff Liberty Landowners Association, Inc., (Liberty Landowners) appeals the trial court's order dismissing its complaint for declaratory judgment that it filed against the appellees-defendants Porter County Commissioners (Commissioners) regarding the decision to rezone certain real property in Porter County, which permitted appellee-intervenor Northwest Indiana Health System, LLC (Northwest Health) to construct a hospital on the property. Specifically, Liberty Landowners argues that the trial court erred in concluding that it lacked standing to proceed with the action. Concluding that the trial court properly dismissed Liberty Landowners's complaint, we affirm. * * *

The determination of whether a plaintiff's complaint should be dismissed for lack of standing is properly treated as a motion to dismiss under Indiana Trial Rule 12(B)(6)—the failure to state a claim upon which relief may be granted. Common Council of Michigan City v. Bd. of Zoning Appeals of Michigan City, 881 N.E.2d 1012, 1015 (Ind. Ct. App. 2008). A successful 12(B)(6) motion requires the lack of standing to be apparent on the face of the complaint. Huffman v. Ind. Office of Envtl. Adjudication, 811 N.E.2d 806, 813 (Ind. 2004). Additionally, the determination of whether a plaintiff's complaint should be dismissed for lack of standing pursuant to a Trial Rule 12(B)(6) motion is generally one of law. Vectren Energy Mktg. & Servs. v. Executive Risk Specialty Ins. Co., 875 N.E.2d 774, 777 (Ind. Ct. App. 2007). We apply a de novo standard of review, and we need not accord deference to the trial court's decision. Reversal is appropriate if an error of law is demonstrated. State ex rel Steinke v. Coriden, 831 N.E.2d 751, 754 (Ind. Ct. App. 2005).

As noted above, Liberty Landowners contends that the trial court erred in granting the Commissioners' motion to dismiss on the grounds that it lacked standing to maintain the action. More specifically, although Liberty Landowners acknowledges that it did not have standing as a private individual, [it contends that] the doctrine of “public standing” permits it proceed with its claims. Appellant's Br. p. 6-12. * * *

In an effort to distinguish the long line of precedent holding that residents' associations do not have standing to challenge zoning decisions, Liberty Landowners argues that its claim against the Commissioners survives in light of the “public standing doctrine,” which is an exception to the general requirement that a plaintiff must have an interest in the outcome of the litigation different from that of the general public. Embry v. O'Bannon, 798 N.E.2d 157, 160 (Ind. 2003).

Notwithstanding this contention, the Commissioners point out that Liberty Landowners did not raise the issue of public standing in the trial court. Rather, it is apparent that Liberty Landowners sought to have the trial court reverse established precedent that landowner associations owning no real estate are without standing to challenge zoning decisions. Thus, Liberty Landowners has waived the issue. See Van Meter v. Zimmer, 697 N.E.2d 1281, 1283 (Ind. Ct. App. 1998) (holding that a party may not advance a theory on appeal which was not originally raised at the trial court level).

Waiver notwithstanding, we note that the public standing doctrine or the availability of taxpayer or citizen standing is limited to extreme circumstances and should be applied with “cautious restraint.” * * * Indeed, even when public standing is asserted, claimants must still have some property right or some other personal right and a pecuniary interest.

As noted above, it is undisputed that Liberty Landowners owns no property and pays no taxes. Moreover, Liberty Landowners has no legal right—personal or pecuniary—that has been put in jeopardy by the Commissioners' decision. In other words, Liberty Landowners has not alleged any direct harm and has not been denied any rights. As a result, Liberty Landowners's claims fail. The judgment of the trial court is affirmed.

SOUTH BEND — A majority of Indiana Supreme Court justices have ruled against a convicted child molester who claimed evidence presented in his case violated his Sixth Amendment rights.

The decision comes on the heels of a recent controversial Supreme Court case that ruled lab technicians must appear in court, rather than send affidavits only.

The local case centers on 40-year-old Richard Pendergrass, of South Bend, who was convicted of child molesting in 2007 for impregnating a female relative. * * *

[D]uring Pendergrass' trial, he objected to the court admitting documents detailing the DNA analysis, insisting that without the actual lab technicians, the paperwork was hearsay.

The protest related to the recent ruling of Melendez-Diaz v. Massachusetts, a case in which drug affidavits deeming a substance to be cocaine were ruled as insufficient evidence. Instead, the historic case ordered lab technicians be in court to back up their claims and be present for cross-examination.

In the Pendergrass case, the prosecution did present live testimony from two lab experts, one who supervised the lab that conducted the report and another who had specific knowledge of DNA.

But Pendergrass argued the actual lab tech should have testified.

In their 11-page ruling, three of five justices found that Pendergrass had the chance to confront witnesses who were directly involved in the analysis, unlike the Melendez-Diaz case, who "confronted none at all."

The judges ruled the witnesses who testified had personal knowledge of the DNA results and were competent to address challenges to the tests.

Two other justices, however, dissented, finding that the Melendez-Diaz precedent points in a different direction.

"The record is clear that it was (the lab technician) who examined the aborted fetus specimen and buccai swabs taken from (the victim)," the dissenting opinion reads. "But (she) was never subjected to the rigors of cross-examination on either the examination she performed, the testing she conducted, or the results she researched."

(To clarifiy, Pendergrass was argued before our Supreme Court on Oct. 9, 2008, the SCOTUS did not finally decide Melendez-Diaz until the end of this term, June 25, 2009, followed by the Indiana Court's Pendergrass ruling on Sept. 24th.)

A related case, Ricky L. Jackson, decided by the Court of Appeals on Aug. 12, 2008, has been pending transfer to the Supreme Court. As reported on the transfer listed posted yesterday, transfer was finally denied, with all justices concurring, on Sept. 24th, the same day as of the Pendergrass opinion.

The ILB has asked Joel Schumm, IU-Indy law prof, for his comments on all this. His response:

What appeared to be a pretty straightforward requirement that defendants have a right to confront the person who prepared a lab report (instead of simply relying on the report as a hearsay exception) has proven more nuanced. In Pendergrass the State called a DNA laboratory supervisor instead of the technician. The majority found this sufficient based on language from Melendez-Diaz, explaining that the right to confrontation “does not mean that everyone who laid hands on the evidence must be called,” which it concludes leaves discretion with the prosecution on which evidence to present. “The laboratory supervisor who took the stand did have a direct part in the process by personally checking [the technician’s] test results,” the majority reasoned.

After reading Pendergrass, I was surprised to see the unanimous denial of transfer in Jackson. Usually the court will sort through the nuances of big issues in separate opinions issued on the same day. (For example, when it decided Anglemyer, it issued two other opinions on the same issue on the same day in McDonald and Windhorst.) Jackson held that calling a supervisor was insufficient because he had performed none of the tests and only the technician could testify “whether she correctly followed each step in the testing process.”

Jackson is difficult to reconcile with the majority opinion in Pendergrass. Indeed, I think the Pendergrass dissent (by Justice Rucker, joined by Justice Boehm) has the stronger argument and is consistent with Jackson: “Although a supervisor might be able to testify to her charge’s general competence or honesty, this is no substitute for a jury’s first-hand observations of the analyst that performs a given procedure; and a supervisor‘s initials are no substitute for an analyst’s opportunity to carefully consider, under oath, the veracity of her results.”

The bottom line: the State should call the technician—not a supervisor—and avoid the uncertainty of a reversal if the testing scenario is found closer to Jackson than to Pendergrass—or if Pendergrass does not withstand later SCOTUS review.

Ind. Decisions - A different take on the COA voter ID decision

The Court of Appeals Sept. 17th decision in League of Women Voters v. Todd Rokita has been the subject of a number of editorials and analyses. For instance, here is a quote from a NY Times story written the day of the opinion:

Indiana’s “Equal Privileges and Immunities Clause” is similar to the Equal Protection clause of the United States Constitution. But the unanimous three-judge panel of the Indiana Court of Appeals found that the voter ID law violated the guarantee of equal protection for all citizens because it did not require mail-in voters and residents of some nursing homes to produce state-approved identification.

Under Indiana law, the court said, it could be reasonable to regulate absentee balloting more stringently than in-person balloting. But the voter ID law does the opposite, the court argued, and “imposes a less stringent requirement for absentee voters than for those voting in person.”

Today the Anderson Herald Bulletin has this editorial, headed "Indiana’s voter ID law should stand." A quote:

The primary underpinning of a democracy is the notion that each eligible voter have one voice — one vote — in determining public office holders.

In order to protect the system, it’s important that the state have checks in place to assure that votes are being cast by citizens with residence in the precinct where they’re voting.

So it doesn’t seem onerous or unfair that the state require voters to present photo identification — a driver’s license, for example — when they show up at the poll. There’s really no other way to ascertain that the voters are who they say they are.

This was the basis of Indiana’s 2005 law requiring voters to present government-issued identification at the polls on Election Day. The law seems especially practical when you consider that such a photo ID is required to drive a car, ride an airplane, use a credit card, and essentially function as an active member of society.

Yet, this month, the Indiana Court of Appeals struck down the state’s voter ID law. The three-judge panel ruled that the law could not be implemented evenly because it did not apply to absentee voters.

That’s a good point. But on a practical level, should a solution to one part of a problem be discounted because it’s not a solution to all parts of the problem?

The state Constitution's intent is specific and clear, say the appeals judges. The Equal Privileges and Immunities Clause demands that laws be applied in a uniform and impartial manner. Specifically, the judges objected to the voter ID law's disparate treatment of those who vote in person at polling places and those who vote absentee by mail. Unlike in-person voters, absentee voters are not required to present a government-issued photo ID. * * *

Voters and election officials alike would be best served by an early resolution to Indiana's voter ID issue. If the Supreme Court overturns the Court of Appeals, nothing will change. But if the Supreme Court upholds the Appeals ruling, the General Assembly will need to decide how to amend the law to make it constitutional, whether to scrap it and start over, or whether to simply let go of the notion of requiring polling place IDs. It would be working on a deadline. There's a statewide election in 2010.

Edwin Berberena appeals his conviction for Resisting Law Enforcement, as a Class A misdemeanor, following a bench trial. He presents a single issue for our review, namely, whether the State presented sufficient evidence to support his conviction. * * *

As our Supreme Court held in Graham, "[i]t is error as a matter of law to conclude . . . that 'forcibly resists' includes all actions that are not passive." 903 N.E.2d at 965. In sum, force is an element of the offense, id., but there is simply no evidence of force. We hold that the evidence is insufficient to support Barbarena's resisting law enforcement conviction.

Law - "A new push to define 'person,' and to outlaw abortion in the process"

Robin Abcarian reports today in the LA Times - the subhead is "Some abortion foes think the rationale for Roe vs. Wade is vulnerable. They're trying to amend state constitutions -- including California's -- to define personhood from conception."

Ind. Decisions - "Child support order was error"

The Court of Appeals decision yesterday in the case of M.W. v. State of Indiana (see ILB summary here, 4th case) is the subject of a brief AP story today:

The Indiana Court of Appeals has reversed a judge who ordered a state agency to pay child support for a 15-year-old girl placed in detention.

The court ruled Monday that Hendricks Circuit Judge Jeffrey Boles had erred based on its interpretation of state law.

The girl's caseworker had asked Boles to temporarily place the girl in a Muncie detention center after she was arrested for possessing a stolen car. Boles agreed, and ordered the Department of Child Services to pay for her detention and weekly child support.

The appeals court ruled that DCS can be charged for detention only when there is a written agreement with local probation officials, and none was in place. It also says requiring DCS to pay child support would impose an undue burden on the agency.

Law - NY Times on "High Cost of Death Row"

To the many excellent reasons to abolish the death penalty — it’s immoral, does not deter murder and affects minorities disproportionately — we can add one more. It’s an economic drain on governments with already badly depleted budgets.

It is far from a national trend, but some legislators have begun to have second thoughts about the high cost of death row. Others would do well to consider evidence gathered by the Death Penalty Information Center, a research organization that opposes capital punishment.

States waste millions of dollars on winning death penalty verdicts, which require an expensive second trial, new witnesses and long jury selections. Death rows require extra security and maintenance costs.

There is also a 15-to-20-year appeals process, but simply getting rid of it would be undemocratic and would increase the number of innocent people put to death. Besides, the majority of costs are in the pretrial and trial.

According to the organization, keeping inmates on death row in Florida costs taxpayers $51 million a year more than holding them for life without parole. North Carolina has put 43 people to death since 1976 at $2.16 million per execution. The eventual cost to taxpayers in Maryland for pursuing capital cases between 1978 and 1999 is estimated to be $186 million for five executions.

Perhaps the most extreme example is California, whose death row costs taxpayers $114 million a year beyond the cost of imprisoning convicts for life. The state has executed 13 people since 1976 for a total of about $250 million per execution. This is a state whose prisons are filled to bursting (unconstitutionally so, the courts say) and whose government has imposed doomsday-level cuts to social services, health care, schools and parks.

Money spent on death rows could be spent on police officers, courts, public defenders, legal service agencies and prison cells. Some lawmakers, heeding law-enforcement officials who have declared capital punishment a low priority, have introduced bills to abolish it.

Ind. Decisions - Transfer list for week ending September 25, 2009

A change: This week's transfer list contains the names of all the judges on the COA panel, with the writing judge indicated.
________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the May 22nd list.

Over 5 1/2 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Ind. Decisions - 7th Circuit decides one Indiana case today

A jury convicted Varnador
Sutton of a single count of violating 18 U.S.C. § 1347
(prohibiting health care fraud) for his role in perpetrating
a fraudulent scheme to collect money from Indiana
Medicaid. The district court sentenced Sutton to the
statutory maximum of ten years’ imprisonment to be
followed by two years of supervised release. Sutton
appeals, challenging the district court’s calculation of his
sentence. * * *

For the foregoing reasons, we AFFIRM Sutton’s conviction,
but VACATE his sentence and REMAND for
resentencing.

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

The Indiana High School Athletic Association (“IHSAA”) appeals the award of attorney fees to Gregory Schafer and Shane Schafer. We remand. * * *

We are unable to affirm the award of attorney fees because the trial court’s findings do not support its judgment. But our result on that narrow ground must not be interpreted to condone IHSAA’s actions, in either its “arbitrary and capricious,” application of its rules to Shane, which application Judge Kickbush aptly described as “absurdity,” (id.), or its conduct of this litigation, which “degenerated to a goal to determine who would own the ship and who would paddle the oars.”

We have commented with disapproval on similar litigation tactics employed in the past by IHSAA * * *

The case before us raises the same concerns that the IHSAA is trying “to send a message to parents and student athletes in Indiana about the great risk and expense involved in challenging a ruling, and thus discourage them from appealing a denial of eligibility.” The findings in this case are currently insufficient to support the judgment, but as in Smyth, it appears the evidence in the record might. We accordingly remand so the trial court may further consider and explain its judgment with regard to its conclusion on the attorney fees issue.

Munster Med Inn v. Sheila Banks "Munster Med Inn (“Munster”) appeals the determination of the Worker’s Compensation Board that the Second Injury Fund is not responsible for a portion of Sheila Banks’ disability benefits. Banks cross-appeals, requesting that we increase her award. We reverse and remand, but deny the cross appeal."

Pursuant to the applicable statutes, McCallister was entitled to receive credit toward his sentence for the days he served while imprisoned before he was sentenced (ninety-five days) plus an additional one day of credit time, or Class I credit, for each day of presentence confinement (ninety-five days). Because the sentencing order awarded McCallister only five days of presentencing confinement credit plus five days of Class I credit, we reverse and remand with instructions to award the correct credit time.*
_____
* We note the trial court cannot now reject McCallister’s plea. “A plea agreement is contractual in nature, binding the defendant, the state, and the trial court, once the judge accepts it.” St. Clair v. State, 901 N.E.2d 490, 492 (Ind. 2009). We also direct the trial court to correct its sentencing order to reflect the sentencing language contained in the plea agreement. See id. at 493 (explaining that once a trial court accepts a plea agreement, it has only that degree of sentencing discretion provided in the agreement). Specifically, the CCS entry regarding sentencing indicates that McCallister’s two-year sentence “is suspended on the condition” that McCallister serve his ninety-day jail time and six-month work release. (App. at 3.) However, the sentencing terms contained in the plea agreement provide that McCallister is to be sentenced to two years, with the first ninety days executed at the county jail, the next six months executed on work release, and the remaining fifteen months suspended to drug probation. (See id. at 48.)

Appellant, the Indiana Department of Child Services (DCS), appeals the trial court’s Order mandating the DCS to pay the costs of the minor child’s, M.W., secure detention and weekly child support while M.W. is incarcerated at the Department of Correction. We reverse. * * *

Pursuant to HEA 1001, effective January 1, 2009, DCS was granted the authority to recommend services and placements in all CHINS, termination of parental rights, and delinquency cases. * * *

Based on these unambiguous statutory provisions, the DCS is not responsible to carry the costs of the minor child’s secure detention unless there is a written agreement. Here, no such written agreement ever existed and therefore, the DCS cannot be held liable to pay M.W.’s costs of secure detention to Hendricks County. * * *

Based on the foregoing, we conclude that (1) the trial court erred in mandating the DCS to pay the costs of secure detention for a minor child; and (2) the trial court erred in finding that the DCS was required to pay weekly child support for the minor child. Reversed.

Courts - "The Case of the Plummeting Supreme Court Docket "

In the early 1980s, the Supreme Court decided more than 150 cases a year. These days, it decides about half that many.

A couple of weeks ago, the Supreme Court advocacy clinic at Yale Law School held a conference to explore the mystery of the court’s shrinking docket. Law professors presented data, theories and speculation. Expensive lawyers told rueful stories about can’t-miss cases that somehow did not make the cut.

Some participants blamed the newer justices, others their clerks. Some blamed Congress, saying it is not cranking out enough confusing legislation. And some blamed the Justice Department, which is filing fewer appeals.

But there emerged nothing like a definitive answer to why the court now selects perhaps 80 cases from more than 8,000 requests for review it receives every year.

Ind. Law - It's the Law column takes a victory lap

Ken Kosky's "It's the Law"column in the NWI Times this week celebrates an anniversary and takes a victory lap. Some quotes:

Earlier this month, It's the Law celebrated one year in print.

The column has endeavored to tackle laws with judicious timing -- such as focusing at the start of the school year on the need to obey school bus stop arms and school zone speed limits, and explaining the illegal nature of open burning during the spring and fall when cleanup takes place throughout the area.

It's the Law has covered everything from littering to child molestation, from voting laws to odd and outdated laws. The column also explained how prosecutors decide whether to charge someone, why they enter into plea agreements with defendants and why the death penalty is or is not sought.

The column also recently earned a state award -- the Indiana Judges Association's Excellence in Public Information and Education award. [ILB - congratulations!]

It's the Law actually dates back to 1990, when it first appeared in The Vidette-Messenger, which The Times purchased. The first set of It's the Law columns ran from April 1990 to August 1992.

The column began after two police officers urged putting laws in the spotlight. Al Eisenmenger, of the Valparaiso Police Department, and Mike Krawczyk, a retired Porter County police officer, felt that, while ignorance of the law is no excuse, it would benefit everyone if the community were educated about the most commonly violated laws and some of the more obscure laws.

It's the Law returned Sept. 1, 2008, and continues its mission to educate the community about laws and to answer readers' questions.

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 9/28/09):

Thursday, October 1st

9:00 AM - Julie Gardiner v. State of Indiana - The Carroll Circuit Court determined that Gardiner's class A felony sentence could not be suspended below the statutory minimum of twenty years because she had a prior unrelated felony conviction. The prior conviction was a class D felony to which Gardiner had pleaded guilty but which had been reduced to a class A misdemeanor by the time of Gardiner's sentencing on the class A felony. The Court of Appeals affirmed the trial court in Gardiner v. State. 903 N.E.2d 552 (Ind. Ct. App. 6/17/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Note: Here is the ILB summary of the 2-1 COA opinion.]

9:45 AM - Shewanda Beattie v. State of Indiana - A jury found Beattie not guilty of dealing in cocaine and possession of cocaine, but found her guilty of possessing cocaine in a family housing complex, and the Vanderburgh Circuit Court sentenced her accordingly. The Court of Appeals reversed on grounds the verdicts were inconsistent, and ordered a new trial on the possession of cocaine in a family housing complex. Beattie v. State, 903 N.E.2d 1050 (Ind. Ct. App. 4/9/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Note: Here is the ILB summary of the COA opinion - 6th case.]

10:30 AM - Robert E. Carter, Jr. v. Nugent Sand Company - Nugent Sand operates a sand and gravel company on a man-made lake near the Ohio River, and constructed a channel providing access for barge traffic from the lake to the river. The Indiana Department of Natural Resources conditioned permits to construct the channel on Nugent Sand's dedicating the water to public use, relying on Indiana Code section 14-29-4-5(2). Nugent Sand sought declaratory and injunctive relief. The Marion Superior Court held that the statute is unconstitutional to the extent it requires dedication to public use without compensation, and granted relief. In this direct appeal following the trial court's declaration that the statute is unconstitutional, the Department argues that Nugent Sand failed timely to appeal, the statute is not unconstitutional, and that the trial court's judgment should be reversed.

Next week's oral arguments before the Supreme Court (week of 10/5/09):

Next Thursday, October 8th

9:00 AM - Giovanoni v. Review Bd. of Ind. Dep't of Workforce Dev. and Beckingham v. Review Bd. of Ind. Dep't of Workforce - Both of these appeals involve claimants' eligibility for unemployment benefits following termination of employment for violation of no-fault attendance policies. The Unemployment Insurance Review Board denied the claimants' applications in both of these cases. A divided panel of the Court of Appeals reversed the Board's denial of benefits to Giovanoni, holding he was not terminated for just cause and therefore eligible for benefits. Giovanoni v. Review Bd. of Ind. Dep't of Workforce Dev., 900 N.E.2d 437 (Ind. Ct. App. 1/29/2008), vacated. A different Court of Appeals panel, also divided, affirmed the denial of benefits to Beckingham, holding she was discharged for just cause and therefore not entitled to benefits. Beckingham v. Review Bd. of Ind. Dep't of Workforce Dev., 903 N.E.2d 477 (Ind. Ct. App. 3/20/2009), vacated. The Supreme Court has granted petitions to transfer in both cases and has assumed jurisdiction over the appeals. The Court will hold a forty (40) minute combined oral argument for the two cases, but otherwise has not consolidated the appeals.
[Note: Here is the ILB summary of the 2-1 COA opinion in Beckingham - 4th case; here is the 2-1 opinion in Giovanoni - 3rd case.]

9:45 AM - Jimmie C. Smith v. Champion Trucking Co., Inc. - Jimmie Smith was driving a truck in the course of his employment with Champion Trucking when he was struck by another motorist and injured. Jimmie received medical benefits from Champion and then simultaneously pursued additional worker's compensation benefits and a claim against the third-party tortfeasor. After Smith settled his claim against the third-party, the hearing officer granted Champion's motion to dismiss Smith's worker's compensation claim. The Worker's Compensation Board affirmed. The Court of Appeals reversed and remanded. Smith v. Champion Trucking Co., Inc., 901 N.E.2d 620 (Ind. Ct. App. 6/17/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
[Note: Here is the ILB summary of the COA opinion - 2nd case.]

10:30 AM - Vanessa Thompson v. State of Indiana - In denying post-conviction relief, the Marion Superior Court rejected Appellant's claim that she was entitled to a new trial because the State had withheld evidence contrary to Brady v. Maryland, two witnesses had testified untruthfully, and Appellant received ineffective assistance of counsel. The Court of Appeals affirmed in Thompson v. State, 4/16/2009, an unpublished Memorandum Decision. Appellant has petitioned the Supreme Court to accept jurisdiction over the appeal.

1:30 PM - Dewayne Jones v. Housing Authority of South Bend - Note: The COA calendar still provides no information other than the case name - I obtained the time of the argument and the panel (Baker, Friedlander and Riley) from the Clerk's docket. [Where: Court of Appeals Courtroom (WEBCAST)]

1:25 PM - R. H. v. State of Indiana - This case involves an Indianapolis police officer's response to a 911 call about an "unfamiliar car" with concern that "there was something going on." The officer pulled up behind a car matching the description and, although he noticed no criminal activity, he observed that the passenger compartment was full of smoke. He turned on his emergency lights, and approached the vehicle. The officer knocked on the rear right passenger window of the vehicle. When the window was rolled down, smoke billowed out with the recognizable aroma of marijuana. The vehicle was occupied by two adults and two juveniles. The stop resulted in the arrest and adjudication of R.H., the juvenile in the driver's seat, as a delinquent child for possession of marijuana, a Class A misdemeanor if committed by an adult.
The Scheduled Panel Members are: Judges Darden, Robb and Mathias. [Where: Hamilton Southeastern High School, Fishers, Indiana] [ILB - new since last week's calendar]

1:30 PM - Wurster Construction Co., Inc. v. Essex Insurance Co. - The special administrator of the estate of Christian King ("Estate") filed a wrongful death suit against Wurster Construction Co., Inc. ("Wurster") and Kane Construction, Inc. ("Kane") seeking compensation for King's alleged work-related death. Essex Insurance Company ("Essex") insured Kane under a commercial general liability policy, which named Wurster as an additional insured. The claim on the merits involves an action filed by Essex seeking a declaratory judgment on the issues of coverage and duty to defend. Wurster now appeals the trial court's belated grant of Essex's motion to correct error and, citing to Garrison v. Metcalf, 849 N.E.2d 114 (Ind. 2006), contends that the trial court's belated action is a nullity for the reason that it was entered after Essex's motion was "deemed denied" by operation of Indiana Trial Rule 53.3(A). Essex contends that, pursuant to our Supreme Court's reasoning in Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285 (Ind. 2000) and HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 97 (Ind. 2008), it is entitled to assert as cross-error the issue presented in its "deemed denied" motion; i.e., whether the trial court erred by declaring that Essex has no insurance coverage for and no duty to defend Kane and/or Wurster in the law suit filed against them by the Estate.
On cross-appeal, Wurster contends that summary judgment was improperly granted to Essex because there is a genuine issue of material fact as to whether the insurance policy endorsements, which excluded coverage for Kane's independent contractors, and on which the trial court relied to reach its decision, were, in fact, part of the insurance policy. Wurster argues that the endorsements were a unilateral change, and therefore not part of the policy. Essex responds that the endorsements are part of the policy since they were accepted by an insurance agent acting on Kane's behalf.
The Scheduled Panel Members are: Judges Najam, Kirsch and Barnes. [Where: Court of Appeals Courtroom (WEBCAST)] [ILB: this summary, as are they all, is from the COA calendar]

Next week's oral arguments before the Court of Appeals (week of 10/5/09):

Next Monday, October 5th

2:00 PM -
Newland Resources, LLC., v. The Branham Corporation - Newland Resources, LLC entered into an agreement with The Branham Corporation under which Branham was obligated to provide assistance to Newland in the negotiation of contracts with the City of Indianapolis and the Indianapolis Water Company for the sale of water and acceptance of sewage flow from an area serviced by Boone County Utilities, LLC, a wholly-owned utility operating company formed by Newland to provide water and sewer utilities. The agreement also included provisions for a success fee payable to Branham in the event Boone County Utilities was sold to a third party under certain conditions. Newland appeals from a jury verdict in favor of Branham for $397,853.92 on Branham's complaint for breach of contract against Newland for payment of the success fee. In addition to numerous allegations of procedural errors, both Newland and Branham challenge the interpretation of the contractual provisions triggering the entitlement to and calculation of the success fee. The Scheduled Panel Members are: Judges Friedlander, Najam and Vaidik. [Where: Court of Appeals Courtroom (WEBCAST)]

Next Tuesday, October 6th

11:00 AM - Jeremy D. Simpson v. State of Indiana - A jury convicted Jeremy Simpson of voluntary manslaughter and criminal recklessness. On appeal, Simpson raises three issues: (1) that the State failed to rebut his self-defense claim; (2) that the trial court erred in refusing to recall a State's witness after defense counsel discovered that he had written a letter to the trial court requesting a modification of his sentence in another case and expressing concern for his safety; and (3) that the trial court erred in refusing one of his final jury instructions regarding the presumption of innocence.
The Scheduled Panel Members are: Chief Judge Baker, Judges Crone and Bradford. [Where: Indiana Wesleyan University, Marion Campus, Marion, Indiana]

Next Wednesday, October 7th

1:30 PM - Michael Greer and John Maggi v. Edwin G. Buss, Commissioner of the Indiana Department of Corrections, et al. - Michael Greer and John Maggi filed a proposed class action seeking declaratory and injunctive relief with respect to the Indiana Department of Correction (DOC) policy that individuals convicted of certain sex or violent offenses which required registration for a ten-year period must register for an additional ten-year period upon a subsequent conviction for any criminal offense. According to DOC, such additional registration was required by statute. Greer and Maggi appeal the trial court order that both dismissed their proposed class action and granted summary judgment to DOC thereon.
The Scheduled Panel Members are: Judges Darden, Robb and Mathias. Where: Court of Appeals Courtroom (WEBCAST)]

2:30 PM - Dustin Neff v. State of Indiana - In this appeal from the Hamilton Superior Court, Dustin Neff appeals his conviction for one count of Class C felony child solicitation. Neff contends there is insufficient evidence that he committed the offense as charged. He also argues that the State failed to prove venue in Hamilton County where Neff, located in Madison County, chatted online with an individual in Georgia who was posing as a twelve-year-old girl, and Neff drove to a prearranged meeting place in Hamilton County.
The Scheduled Panel Members are: Judges Barnes, Crone and Bradford. [Where: Indiana University, South Bend]

Sunday, September 27, 2009

This is a story about MERS (the Mortgage Electronic Registration System) and a Supreme Court decision in Kansas. We've had a Court of Appeals decision somewhat on this issue, which will be discussed at the end of this entry.

WITH the mortgage bust approaching Year Three, it is increasingly up to the nation’s courts to examine the dubious practices that guided the mania. A ruling that the Kansas Supreme Court issued last month has done precisely that, and it has significant implications for both the mortgage industry and troubled borrowers.

The opinion spotlights a crucial but obscure cog in the nation’s lending machinery: a privately owned loan tracking service known as the Mortgage Electronic Registration System. This registry, created in 1997 to improve profits and efficiency among lenders, eliminates the need to record changes in property ownership in local land records.

Dotting i’s and crossing t’s can be a costly bore, of course. And eliminating the need to record mortgage assignments helped keep the lending machine humming during the boom.

Now, however, this clever setup is coming under fire. Legal experts say the fact that the most recent assault comes out of Kansas, a state not known for radical jurists, makes the ruling even more meaningful.

Here’s some background: For centuries, when a property changed hands, the transaction was submitted to county clerks who recorded it and filed it away. These records ensured that the history of a property’s ownership was complete and that the priority of multiple liens placed on the property — a mortgage and a home equity loan, for example — was accurate.

During the mortgage lending spree, however, home loans changed hands constantly. Those that ended up packaged inside of mortgage pools, for instance, were often involved in a dizzying series of transactions.

To avoid the costs and complexity of tracking all these exchanges, Fannie Mae, Freddie Mac and the mortgage industry set up MERS to record loan assignments electronically. This company didn’t own the mortgages it registered, but it was listed in public records either as a nominee for the actual owner of the note or as the original mortgage holder.

More from the story:

As long as real estate prices rose, this system ran smoothly. When that trajectory stopped, however, foreclosures brought against delinquent borrowers began flooding the nation’s courts. MERS filed many of them.

“MERS is basically an electronic phone book for mortgages,” said Kevin Byers, an expert on mortgage securities and a principal at Parkside Associates, a consulting firm in Atlanta. “To call this electronic registry a creditor in foreclosure and bankruptcy actions is legal pretzel logic, nothing more than an artifice constructed to save time, money and paperwork.”

The system also led to confusion. When MERS was involved, borrowers who hoped to work out their loans couldn’t identify who they should turn to.

As cases filed by MERS grew, lawyers representing troubled borrowers began questioning how an electronic registry with no ownership claims had the right to evict people. April Charney, a consumer lawyer at Jacksonville Area Legal Aid in Florida, was among the first to argue that MERS, which didn’t own the note or the mortgage, could not move against a borrower.

Initially, judges rejected those arguments and allowed MERS foreclosures to proceed. Recently, however, MERS has begun losing some cases, and the Kansas ruling is a pivotal loss, experts say.

While the matter before the Kansas Supreme Court didn’t involve an action that MERS took against a borrower, the registry’s legal standing is still central to the ruling.

The case involved a borrower named Boyd A. Kesler, who had taken out two mortgages from two different lenders on a property in Ford County, Kan. The first mortgage, for $50,000, was underwritten in 2004 by Landmark National Bank; the second, for $93,100, was issued by the Millennia Mortgage Corporation in 2005, but registered in MERS’s name. It seems to have been transferred to Sovereign Bank, but Ford County records show no such assignment.

In April 2006, Mr. Kesler filed for bankruptcy. That July, Landmark National Bank foreclosed. It did not notify either MERS or Sovereign of the proceedings, and in October, the court overseeing the matter ordered the property sold. It fetched $87,000 and Landmark received what it was owed. Mr. Kesler kept the rest; Sovereign received nothing.

Days later, Sovereign asked the court to rescind the sale, arguing that it had an interest in the property and should have received some of the proceeds. It told the court that it hadn’t been alerted to the deal because its nominee, MERS, wasn’t named in the proceedings.

The court was unsympathetic. In January 2007, it found that Sovereign’s failure to register its interest with the county clerk barred it from asserting rights to the mortgage after the judgment had been entered. The court also said that even though MERS was named as mortgagee on the second loan, it didn’t have an interest in the underlying property.

By letting the sale stand and by rejecting Sovereign’s argument, the lower court, in essence, rejected MERS’s business model.

Although the Kansas court’s ruling applies only to cases in its jurisdiction, foreclosure experts said it could encourage judges elsewhere to question MERS’s standing in their cases.

“It’s as if there is this massive edifice of pretense with respect to how mortgage loans have been recorded all across the country and that edifice is creaking and groaning,” said Christopher L. Peterson, a law professor at the University of Utah. “If courts are willing to say MERS doesn’t have any ownership interest in mortgage loans, that may eventually call into question the priority of liens recorded in MERS’s name, and there are millions and millions of them.”

In other words, banks holding second mortgages could find themselves in the same pair of unlucky shoes that Sovereign found itself wearing in Kansas.

Adrienne Weathersby and Mortgage Electronic Registration Systems, Inc. (“MERS”) appeal the trial court’s grant of summary judgment to JPMorgan Chase Bank, N.A., successor by merger to Bank One, N.A. (“Chase”). Weathersby and MERS raise five issues, which we consolidate and restate as whether the trial court erred by finding that Chase’s mortgage was valid and that Weathersby’s deed and MERS’s mortgage were invalid. We reverse and remand.

This complex real estate dispute concerns a determination of ownership to a piece of property in Lake County for which multiple chains of title exist. Chase claims that Bessie Lewis is the valid owner of the property and that it holds a valid mortgage, while Weathersby claims that she is the valid owner of the property and MERS holds a valid mortgage. * * *

On December 5, 2006, Chase filed a declaratory judgment complaint against Weathersby and MERS, seeking a declaration that the Weathersby deed and the MERS mortgage were invalid because they were recorded outside the proper chain of title. In May 2007, Chase filed an amended complaint for declaratory judgment against Weathersby, MERS, and the 5285 Adams Trust. Chase alleged that the 5285 Adams Trust had “no estate, right, title, lien, claim or interest in the Property,” that Lewis owned the Property, and that its mortgage was valid. Appellant’s Appendix at 117. 5285 Adams Trust failed to answer the amended complaint, and a default judgment was granted to Chase against the 5285 Adams Trust. Chase then filed a motion for summary judgment, which the trial court granted * * *

The issue is whether the trial court erred by finding that Chase’s mortgage was valid and that Weathersby’s deed and MERS’s mortgage were invalid. * * * [The opinion then dissolves into complexity, then concludes.]

As a result, we conclude that genuine issues of material fact exist regarding whether the 5285 Adams Trust had actual knowledge in October 1998 of the prior transfer from the Blair Family Trust to FHCS and, thus, whether the 5285 Adams Trust was a bona fide purchaser of the Property. If the 5285 Adams Trust was not a bona fide purchaser of the Property, the chain of title leading to Lewis and Chase fails. We conclude that the trial court erred by granting summary judgment to Chase, and we remand for proceedings consistent with this opinion. For the foregoing reasons, we reverse the trial court’s grant of summary judgment to Chase and remand for further proceedings.

A petition for rehearing was denied, and the opinion has now been certified.

For more on MERS issues in Indiana foreclosures, see this August 4th entry in Advance Indiana, where Gary Welsh quotes at length Stephanie Katich, an attorney with Indiana Legal Services' Foreclosure Defense Unit in Merrillville.

Ind. Gov't. - More on: $40 million spent since passage of 2007 law meant as a bridge to help retired legislators and state employees until they qualify for Medicare

This ILB entry from May 31st gives essential background to today's story in the Fort Wayne Journal Gazette, reported by Niki Kelly. The May 31st story said "The average cost per participant has been about $26,000 -- or about $40 million in total so far." Today's story begins:

More than $120 million has flowed into new health care retirement accounts for state employees in the last two years – a program that has cost more than expected and come at a time when employees have seen pay frozen.

Earlier this year, Gov. Mitch Daniels’ administration tried to eliminate the benefit by zeroing out the funding in the new state budget.

But legislators fought for the program, which was created in 2007 in exchange for eliminating a lifetime health care perk lawmakers had created for themselves.

“(The cost) is a little painful, but I think it’s the right thing to do,” said Sen. Luke Kenley, R-Noblesville, author of the bill that created the program. “The governor is committed to trying to bring health insurance to more people, and it seems to me that the first obligation is to try and start with your own employees.”

The purpose of the plan is to provide a bridge for those retiring before they reach Medicare eligibility age. Under the program, all state employees can use money in their accounts to pay for health insurance premiums when they retire, including buying into the state health care pool.

More from the story:

The total cost of the program the first year was $56 million, with an average number of retirees at 750. This was in line with costs estimated by the nonpartisan Legislative Services Agency.
Then the cost jumped to $67 million this year – $10 million more than expected. The increase is likely because word had spread that the administration was trying to end the program – causing 1,200 employees to retire.

State Budget Director Chris Ruhl said the legislature appropriated only $23 million each year from a 2007 cigarette tax increase to fund the program initially. The rest came from the general fund, specifically an account that is normally used to provide raises and bonuses to state employees as well as absorb some of the increases in health care premiums.

“Pay raises and retirement are not directly linked, but there is definitely a tradeoff,” Ruhl said. “Every dollar you spend one place you can’t spend somewhere else.” * * *

Kenley said lawmakers are “kind of gritting our teeth as we get over the large hump,” but he said the cost would stabilize in 2017 when the additional contributions cease.

Ruhl said he objects to the program because state revenue has plummeted and he is concerned the program could grow in the future.

“In these challenging economic and fiscal times, we thought there were higher priorities,” he said. “In the history of employee benefits, I’d surmise very few have shrunk over time. We are always doing cost-of-living adjustments and gradually expanding the programs over time.”

He also noted that the plan was originally sold as a cost-saving measure to state government by encouraging retirements. The idea was that those positions could then be eliminated or the person could be replaced by a younger employee with a lower salary. But Ruhl said those savings haven’t materialized.

Courts - "Judicial pay disparity drains talent from federal bench"

With seven children to care for and a caseload that quadrupled this past year, U.S. District Judge Stephen G. Larson says he can no longer afford his prestigious lifetime appointment.

The 44-year-old, named to the U.S. District Court for the Central District of California less than four years ago, is the latest defection in an accelerating nationwide trend toward leaving the federal bench long before retirement age to earn more money in private practice.

Vacancies in the federal judiciary are mounting, and too few of the best legal minds are stepping forward to replace them, judicial analysts say. They attribute what they see as a troubling phenomenon to Congress' failure for nearly two decades to pass a significant pay increase for federal judges or to expand their numbers to handle a soaring caseload.

Chief Justice John Roberts of the U.S. Supreme Court has been warning of a "constitutional crisis" and threat to judicial independence if stagnant salaries drive judges out of positions long considered the pinnacle of a distinguished legal career. * * *

Scholars of the judiciary see uncompetitive pay as a disincentive to joining the federal bench, but they cite other reasons as well: withering confirmation proceedings that expose nominees to intense and often politically charged interrogations, tedious cases decided in settlement conferences instead of jury trials, workloads that grow larger with each colleague's departure and the slowing pace of finding replacements.

Aside from the high-profile selection of Sonia Sotomayor as the newest Supreme Court justice, President Obama has made only 17 nominations to 94 vacancies on the federal bench, or 18%. That compares with President George W. Bush's nominations to 44% of open judgeships during his first eight months in the White House.

"They're having a tough time finding people," said Russell Wheeler, a Brookings Institution scholar who studies judge selection. "Those advocating for salary increases say that soon it will be difficult to get the best talent, which is code word for saying they are already not getting the best applicants."

District judges earn $169,300 a year, and those on circuit courts of appeal get $179,500. Even Roberts, the top judge in the 876-person federal judiciary with a salary of $217,000, earns less than a Los Angeles County judge. The Administrative Office of the U.S. Courts calculates that the buying power of those federal salaries has fallen about 25% in the last four decades, while the national average for real wages has increased 18%.

Larson is the third judge lost from California's Central District over the past year, and a fourth has informed the chief judge that she plans to resign to pursue private judging in March. Reacting to Larson's decision, Collins expressed concerns about compounding influences as each departing judge leaves behind a caseload that has to be redistributed among those left on the bench. That is an especially severe problem in the district's eastern sector, where Larson serves, as only one other judge is assigned to that courthouse. Those with business before the court in San Bernardino and Riverside counties may have to travel to Los Angeles or Santa Ana to have their cases heard, Collins said.

Although retention is an acute problem in the costly cities of California, it is a problem across the country. The number of judges departing over the last decade is projected to be 68 by the end of this year, a 24% increase over the 1990s and compared with only three in the 1960s.

Congress last year took up a bill that would have raised federal judges' salaries to $218,000 a year, but it died amid partisan bickering. A measure introduced this session would add 63 new federal judgeships but sidesteps the pay-raise issue. * * *

Federal judges' salaries may seem lavish to many taxpayers, but private judges with alternative dispute-resolution services can earn three times what a district judge makes and a successful partner at a top law firm can take home seven figures, said Arthur Hellman, a University of Pittsburgh law professor and federal judiciary expert.

He also sees a major change in the type of cases dominating a federal judge's docket, with intellectually stimulating cases squeezed out by more pressing prosecutions involving drugs, gangs and deportations.

"It's just not the attractive job it was 20 or 30 years ago, especially if you've been in private practice doing business- related cases," Hellman said.

Courts - "The right of students across the country to speak their minds in blogs and text messages at stake"

Updating this entry from July 17, 2007, and this one from Feb. 20, 2009, today the Waterbury Connecticut American-Republican has a long story reported by Jim Moore, headed "Blogger to be back in court Former Mills High student's suit before U.S. appeals panel." It begins:

Avery Doninger will soon return to the 2nd U.S. Circuit Court of Appeals with the right of students across the country to speak their minds in blogs and text messages at stake.

Once a 16-year-old high school junior who referred to school administrators as "douchebags" in an online blog post protesting the potential cancellation of a school concert, Doninger, 19, is now a freshman at Eastern Connecticut State University who plans, after a year spent volunteering for AmeriCorps in Colorado, Louisiana, Mississippi and Texas, to make a career in nonprofit management.

Her federal lawsuit against former Region 10 Superintendent Paula Schwartz and Lewis S. Mills High School Principal Karissa L. Niehoff, who disqualified Doninger from election as senior class secretary when the infamous blog post came to their attention, is expected to be heard, perhaps for the final time, later this year.

There is no guarantee that the U.S. Supreme Court would agree to hear an appeal from either side, and no guarantee the remaining questions of law will return to U.S. District Court in New Haven.

According to the argument presented by the Virginia-based Student Press Law Center in a "friend of the court" brief, Doninger's post — which urged readers to contact administrators in support of the endangered concert — is especially deserving of protection.

"The lower court's decision would send the wrong message to civics classes, for it unmistakably says that a student may not exercise her First Amendment rights to encourage others to challenge a governmental decision," wrote SPLC attorney Joseph P. Esposito.

U.S. District Court Judge Mark R. Kravitz has twice rejected Doninger's claim that her Constitutional right to free speech was violated by the decision to disqualify her class officer bid, though he left for a jury trial the question of whether administrators crossed that line blocking students from wearing T-shirts with slogans supporting Doninger into the class election assembly held in May 2007.

Ind. Gov't. - "Jeffersonville's sex offender law could get update"

The future of Jeffersonville’s sex-offender ordinance is unclear, as the Indiana Supreme Court has decided not to take a case in which the Indiana Court of Appeals sided against the city.

City Councilman Keith Fetz, who introduced the sex-offender measure, said the council is waiting as new versions of the ordinance are being drafted.

The ordinance banning sex offenders from entering city parks was originally passed in January 2007. It allowed for offenders to request an exemption if they could show “good cause” for entering a park.

Eric Dowdell, who was convicted of sexual battery of a 13-year-old girl in 1996, applied for such an exemption so that he could watch his son play Little League baseball.

Initially he was denied but, following a legal challenge, the Court of Appeals ruled in June that Jeffersonville’s ordinance was unconstitutional as it applies to Dowdell because he served his sentence and completed his requirement to register on the sex offender list before the ordinance was passed. [ILB - see this June 10th entry]

Larry Wilder — the Jeffersonville attorney who wrote, then later defended, the ordinance — is working on revisions. He said an update that bans only those presently on the sex offender registry is being considered. Dowdell was not required to register at the time he was trying to enter a park.

Additionally, changes to the exemption process are also being considered, Wilder said.

In the Court of Appeals ruling, Chief Justice John Baker described the exemption process as “extraordinarily burdensome and virtually illusory,” noting that the offender must provide a “legitimate reason” for the exemption and would have to go through the application process each time a new activity arises.

Wilder said that an ordinance with no exemption process could be an option.

“In my personal opinion, I like the [exemption process] being in the ordinance,” Fetz said. “I truly believe that some people do decide to change their lives and get on the right path.”

An ordinance without exemptions has worked for Plainfield, a town just outside of Indianapolis. Its parks ordinance simply bans those who are on the sex offender list, said Plainfield Town Manager Rich Carlucci.

If someone on the list shows up at a park facility, the person is given a warning first, then fines.

Ken Falk, legal director of the Indiana Civil Liberties Union, not only worked on Dowdell’s challenge, but also on a challenge of the Plainfield ordinance. However, Plainfield’s ban was upheld as constitutional.

The difference, explains Falk, were the type of challenges being made. Dowdell’s was a challenge of the ordinance, specifically as it applied to him. Plainfield’s was a challenge of whether it was unconstitutional on its face to ban sex offenders from parks.

“The court didn’t want to go that far,” he said.

Falk said he didn’t believe the Plainfield ruling would make the future bans more restrictive because it doesn’t have an exemption process.

The biggest factor in the Dowdell case was that it was being enforced retroactively, he said.

In the Dowdell ruling, the Court of Appeals cites Wallace v. State, a Supreme Court ruling that overturned the conviction of Richard P. Wallace for not registering as a sex offender because he completed his probation for child molesting two years prior to the enactment of the state’s Sex Offender Registration Act in 1994.

Wilder said that updates to the Jeffersonville ordinance could be in front of the council by early October.

An important story today in the Evansville Courier & Press, reported by Roberta Heinman ("Special to the Courier & Press" - see ILB footnote):

Valisha Fleming couldn't believe what she saw happening recently in Vanderburgh County's Small Claims Court: A disabled woman with three children at home was sentenced to 30 days in jail for falling $110 behind in court-ordered payments on a debt.

Deputies were called into the courtroom, handcuffed the crying woman, patted her down in the hallway and were going to take her away. She did not have an attorney.

"It just wasn't right," Fleming said.

Fleming said she had never met the woman, Deidre Carter, but she gave $100 of her own money to prevent the woman from being jailed.

The judge in the case, Superior Court Magistrate Richard D'Amour, said Carter was not sentenced for failing to pay a debt, but for failing to obey an earlier court order to pay it. "It may appear to you to be a fine line," D'Amour said, "but it makes a difference."

Other Vanderburgh Superior Court judges said they agree. They contend the court is allowed to sentence and threaten to sentence people to jail if they fail to comply with court orders to pay their debts.

Katherine Rybak, attorney with Indiana Legal Services in Evansville, has long argued that the court's practice is unconstitutional. "No imprisonment for debt means no imprisonment for debt even when the debtor has the ability to pay," she said. Her appeals of the Carter case and a similar case in Perry County have sparked some national discussion over whether the local courts are bringing back a "debtors' prison."

Pay up or go to jail

In the Perry County case, Circuit Judge M. Lucy Goffinet ordered a man to pay $25 a month on a debt or go to jail. The Indiana Court of Appeals reversed her ruling, saying that in such cases, "Even the threat of imprisonment is erroneous." [ILB - here is the summary of the COA decision, originally issued 6/22/09 as NFP]

"Apparently in the southern counties of Indiana, judges are not in sympathy with our state constitution's ban on imprisonment for debt," wrote Alan W. White, a professor of consumer law at Valparaiso University.

He said jailing or threatening to jail people for failure to pay debts "is absolutely not a routine practice anywhere else in the country."

White learned about the cases in a paper written by one of his students, Laura Harris, who spent the summer working as an intern with Rybak in area courts.

White then wrote about the cases in the CL&P Blog, a group blog by lawyers and law professors who practice, teach and write about consumer law and policy across the country. From there it was picked up by Marlys Harris, the consumer reporter on CBS Moneywatch.com. Her report on the cases, "Could Debtors' Prison Make a Comeback?" was noticed by officials at the Indiana AARP, which has sent a reporter to review the cases. [Here is the AARP story.]

In response, Vanderburgh Superior Court Judges Robert Pigman and Robert Tornatta said they're going to ask the Indiana Judicial Center to look at how other courts throughout the state are handling such cases, but they said they're confident the local practice is within the court's authority.

There is much more to the story. It concludes:

Rybak proposed changes early this year in a letter she submitted for publication in the Evansville Bar Association's newsletter, but it was rejected for publication on grounds that it was "editorial comment." The Bar Association has announced that the newsletter will include editorial comment only by the bar's president. [Note: The ILB would be pleased to publish this letter.]

Pigman, who is chief judge in Superior Court, said on the other hand that he has "heard attorneys on both sides compliment us on how efficient this (Small Claims process) is and what a well-run court this is."

"You have to look at each case," he added. "The plaintiff (creditor) by law is entitled to that money. We have to make that finding." And when a debtor doesn't pay, "the difficult decision we face is the difference in can and won't. Is the person defying a court order? ... I've heard attorneys say we're more inclined to rule in favor of the person who owes."

The C&P also has this side-bar, which includes testimony from the Carter hearing described at the beginning of the main story.
__________________
*A search shows that Ms. Heinman is likely "League of Women Voters President Roberta Heiman," shown in this May 30, 2008 photo standing next to the Chief Justice.

Courts - "High Court Justices to Take Up Lawyer Ethics, Errors: Six cases on the calendar will have direct consequences for the practice of law"

Marcia Coyle of The National Law Journal reports in a story dated Sept. 28. The lengthy report begins:

How lawyers do their jobs -- from the type of advice they give clients to the calculation of fees -- moves to the fore in the new U.S. Supreme Court term in six cases that could dramatically alter the day-to-day practice of law.

The justices in recent terms typically have taken two or three cases -- and sometimes none -- involving the legal profession. The six cases this term have roots in the First Amendment, habeas corpus, bankruptcy law, civil procedure, privileged materials and the Sixth Amendment.

"At the beginning of every term, there is an effort to try to paint the term with one brush," said Stephen Vladeck of American University Washington College of Law. "The brush that seems most apt at this point is: This is a term about lawyering."

The cases raise issues about "the unique and various ways lawyers practice law and how the legal system protects lawyers, perhaps even from themselves," said Vladeck.

The unusual number thus far simply may be the result of an upsurge in petitions involving lawyering. But Renee Newman Knake, a professional responsibility scholar at Michigan State University College of Law, suggests another reason: The cases may reflect a larger movement toward greater scrutiny of the legal profession, particularly in the wake of corporate and government scandals involving lawyers.

"Is that why the justices have taken these six cases?" asked Knake, who recently published a paper on the high court's cases. "It's hard to say, but taken together, the cases reflect a significant shift in how the Court prioritizes concerns about the attorney-client relationship and issues of professional responsibility. And, individually, each case has potentially significantly consequences for lawyers and their clients."

An article by Tony Mauro, writing in the same NLJ issue, categorizes the new term as "a business-heavy docket":

More than half of the 45 cases already set for the new term focus on business -- a greater number than in past terms -- but they touch on a broad smorgasbord of issues, noted Robin Conrad of the National Chamber Litigation Center at a Sept. 23 briefing on the term. "We're struck by the breadth of the docket," she said.

So far, no employment law cases and no environmental disputes have been granted review and, for the first time in a while, no pre-emption cases. But there are potential blockbusters on patents, separation of powers, antitrust law and white-collar crime.

Ind. Courts - "Judge Spencer tearfully steps down "

Spencer’s nearly 40 years of public service came to an abrupt end Friday. He left office as he was being investigated for judicial misconduct by the Indiana Commission on Judicial Qualifications.

He says he’s retiring. The Indiana Supreme Court says the commission’s case against Spencer was closed when he agreed to resign. A Supreme Court spokeswoman said that Spencer’s resignation, which was announced Wednesday, was “in the best interests of the judiciary and the public.”

It’s a matter Spencer doesn’t want to talk about — at least not now. Later, maybe.

“It’s gonna be OK. I’m going to be all right. It’s not cancer, and I don’t have a sick grandbaby. I’ll be fine.”

You might call that a Spencerism. Known for colorful comments and actions that occasionally have gotten him in trouble but also defined his years on the bench, he recognized what he’d just said.

“How’s that for a quote?” he said.

“When I’m all done, they’ll only remember the bad quotes,” he quipped.

Now in his early 70s, Spencer said “yes and no” when asked if he’s knew what lay ahead.

Saturday, September 26, 2009

Ind. Law - WSJ discovers the "Invasion of the Golf Carts"

The ILB has been writing since early 2006 about the increasing interest in the use golf carts on Indiana streets and roads.

Jonathan Welsh of the Wall Street Journal reported this story on Sept. 24th, headed "Invasion of the Golf Carts: As Electric Vehicles Migrate Onto Public Streets, Should We Be Worried?" Some quotes:

Dan Karleskint, a retired software developer in Lincoln, Calif., near Sacramento, bought one of these battery-powered vehicles—which are also known as "neighborhood electric vehicle," or NEVs—to cut his fuel costs and become a greener driver. His model, a Chrysler GEM, has a top speed of 25 miles an hour, the federal limit for NEVs. Typically, state and local laws allow them on public roads with speed limits of 35 mph or lower. * * *

Most NEVs cost between $8,000 and $20,000 and can travel 30 to 40 miles on a charge. Their performance varies depending on terrain, temperature, payload and other factors. They typically use lead-acid batteries that take about six to 10 hours to charge when plugged into a wall outlet. Special fast-charge systems allow charging in an hour or so. Some vehicles use other types of batteries, including lithium ion models, that offer longer ranges and charge faster. * * *

A Chrysler spokesman says its GEM vehicles meet all federal safety regulations for low-speed vehicles. Wheego spokesman Les Seagraves says buyers have to use common sense in deciding "where it is appropriate and safe" to drive the cars and which roads they should avoid. "This is your errand car or your city car. This is not a car that is going to replace your number-one vehicle," he says.

NEV users are quick to point out the overall cost of owning an electric car can be one-third the cost of operating gasoline cars. Based on the fossil-fuel energy used to charge their batteries, makers say, the typical NEV logs an equivalent fuel economy of 150 miles per gallon.

People have been using golf carts on low-speed roads within communities built around golf courses for decades. Sometimes golf-cart drivers would venture outside their enclosed neighborhoods to run short errands, though the practice was sometimes illegal. As gated communities proliferated, manufacturers began selling golf carts with creature comforts like doors to ward off the chill, and safety features like taillights and seatbelts.

Under federal safety rules, NEVs are classified as "low-speed vehicles." Such vehicles are exempt from almost all of the safety standards that apply to passenger cars. LSVs don't need to have bumpers or doors and don't have to pass tests of crashworthiness. Because they usually weigh about 1,200 pounds—roughly a third as much as many cars—safety experts say there is almost no way for vehicles to stand up to a collision with a 4,000-pound sedan or sport-utility vehicle.

Dawn Hewitt reports in the Bloomington Herald-Times in a story ($$) that begins:

Carolyn Waldron is the new director of the Indiana University Maurer School of Law Environmental Law Program.

Among her credentials: She was a founder of Hoosier Environmental Council two decades ago and was a vice president of the National Wildlife Federation. She recently led an initiative to conserve and restore Oregon’s coastal and ocean resources.

She brings to her job experience in environmental policy at the local, state and national levels. She led the wildlife federation’s national wetlands conservation policy program and helped secure passage of the Everglades Restoration Act — the world’s largest ecological restoration project — to conserve the vast Florida wetland ecosystem, according to an IU news release.

Waldron is not new to Bloomington. She has bachelor’s and master’s degrees from IU and is a graduate of Leadership Bloomington. Her position at the law school is supported through a grant from the Nina Mason Pulliam Charitable Trust as part of its commitment to help Indiana’s land trusts and environmental education and advocacy groups.

Down to Earth posed some questions to Waldron vie e-mail. Here are her answers:

QUESTION: You’re not a lawyer. Why did you want to direct the environmental law program at Indiana University?

ANSWER: I have been involved in environmental policy for over 25 years as a professional and volunteer. Public policy and law are interrelated. (Public policy guides decisions and action for social change, and these policies are embodied in environmental laws and judicial decisions.)

I believe I can continue to make a meaningful difference here at the Maurer School of Law and in the conservation community, and I am delighted to be working with such a talented group of people. There are substantial conservation opportunities here at IU and in Indiana, and I look forward to building a great program and growing partnerships that help solve today’s environmental challenges.

Ind. Gov't. - Still more on: Daniels' welfare privatization: Too big to fail? Shouldn't we be working on a Plan B?

Updating this ILB entry from Sept. 22nd, a number of stories today cover yesterday's testimony of Family and Social Services Administration (FSSA) Secretary Anne Murphy before the State Budget Committee.

Murphy said a team from IBM Corp. has made improvements to its system by improving its technology and adding staff. But she said the timeliness of processing applications for food stamps, Medicaid and other benefits has not improved, a problem she attributed to too little in-person contact.

"There has been a loss of the face-to-face interaction," Murphy said. "We think a lot of the errors that we're seeing are the result of not having sufficient face-to-face interaction with the client." * * *

Critics have complained about lost documents, lengthy approvals for benefits and other problems with the new system, and Murphy has given the contractors until the end of this month to fix a host of problems.

Among them, a complaint from both advocates for welfare recipients and lawmakers about a lack of face-to-face contact that largely began when Indiana moved about 1,500 state caseworkers to the IBM team in March 2007.

Murphy said the state does not want to return to the old system, in which every welfare recipient had a single caseworker. She said her department wants to find a balance between the old system and the new technology-driven system, which uses call centers and document imaging and gives both state caseworkers and their private partners access to the files of every welfare recipient. * * *

Sen. Luke Kenley, R-Noblesville, was among the lawmakers who questioned whether the state is getting its money's worth from IBM and its partners. Kenley said the budget committee will continue examining the contract through much of the fall. "This is only the beginning of this discussion," Kenley said.

Angela Mapes-Turner has this report in the Fort Wayne Journal Gazette. Some quotes:

State officials claimed Friday that they’re closely monitoring Indiana’s failing attempt to privatize welfare. But they admitted to lawmakers that they don’t know what the penalties might be for not meeting federal standards.

Lawmakers pressed Anne Murphy, secretary of the Family and Social Services Administration, for details on how a 10-year, $1.16 billion deal with IBM Corp. can be salvaged and what progress has been made since the state ordered corrective steps July 1. * * *

Murphy told the state budget committee that no decision has been made on whether to cancel the IBM contract and that she won’t decide until next month.

She would not say how much the problems are costing the state compared with the old system, or how much the federal government might fine Indiana if benchmarks for food stamp and Medicaid services aren’t met.

Rep. Dennis Avery, D-Evansville, asked Murphy why more details of how the state is planning to fix the system have not been made public. She replied that the details are part of an ongoing investigation by Daniels’ administration. * * *

She presented oft-repeated details about why the state entered into the contract with IBM in the first place: low client satisfaction, high error rates.

But in response to questioning by lawmakers, she said there has not yet been a survey of client satisfaction in areas under the new system, and current error rates are not available to present to the board. * * *

Some opponents pushed to scrap the contract. Rep. Gail Riecken, D-Evansville, who pushed legislators during the special session for an independent audit, told the panel Friday it’s too late for that.

“We are beyond the time for audits and investigations,” she said. “We know there are problems. We also know that the neediest of our citizens cannot wait any longer for these vital health care services.”

The state budget committee will form a subcommittee to study the issue.

Committee Chairman Sen. Luke Kenley, R-Noblesville, seemed to say the billion-dollar deal could be saved so long as some services were being rendered. He pointed out that the number of Hoosiers receiving assistance is higher than ever.

“We fixed the BMV,” Kenley said with a laugh. He defended a comparison of the two agencies, saying both deal with people on a one-on-one basis.

“I don’t think we know the answer whether or not we are really hurting a lot of people,” he said. “There are obviously individual cases that are not being taken care of adequately, but … many more people are receiving services, so somehow the services are getting out.”

Sparks flew this afternoon as a state fiscal panel held the first hearing of its investigation into Gov. Mitch Daniels’ administration’s often-criticized effort to modernize the way Indiana handles welfare applications. * * *

The most tense moment came when state Rep. Dennis Avery, D-Evansville, told Murphy he understands the agency is closely monitoring the new system’s performance but won’t release that information.

“So the public has no idea,” Avery said.

“We have said that those are internal documents,” Murphy answered.

The exchange prompted the committee’s chairman, state Sen. Luke Kenley, R-Noblesville, to look at Avery and ask, “Is this a trial, or is this an effort to improve the system?”

Not long afterward, Rep. Gail Riecken, another Evansville Democrat, said it didn’t matter – she’d seen enough to make up her mind.

She said lawmakers should look at “the reality that the entire contract is failing” and act immediately to cancel it and sue Armonk, N.Y.-based IBM Corp. and Dallas-based Affiliated Computer Services, Inc.

“We know that there are problems,” she said. “We also know that the neediest of our citizens cannot wait any longer for vital health care services.”

Her calls for change were echoed by others Friday. * * *

The meeting had been viewed as an important development because the vendors have promised results. FSSA Secretary Anne Murphy said this summer that the vendors are implementing a “corrective-action plan,” and that she expects improvements by now.

But other than intense questioning and requests for more data, the panel essentially kicked the can down the road, making plans for more meetings next month.

“It was awfully general,” Avery said of the meeting. “All efforts to get specific info were met with either ‘we don’t have it’ or ‘we can’t make that public.’” * * *

After the meeting lawmakers complained that it sounds like other than proceeding under the current contract, no other options are being considered. But Kenley disagreed, saying he thinks the Daniels administration is looking into alternate plans.

After an eruption of complaints, the state halted the program's expansion in January. So far, 59 of Indiana's 92 counties are using the modernized system. But that covers only about a third of Indiana's population, as the system doesn't include some of the state's most populous counties, including Marion and Lake.

"It kind of boils down to about $100,000 a day that's being spent by the state, which is taxpayer dollars, for services that are not being provided," said Rep. Peggy Welch, D-Bloomington.

She and others asked for more information about the contract, including how much the state is spending because the system hasn't moved statewide. * * *

Lawmakers are not alone in questioning the IBM contract. The U.S. Department of Agriculture's Food and Nutrition Services has told the state the system's error rate is unacceptably high, and Friday, advocates for Hoosiers who get food stamps and Medicaid repeated their assertions that the system is failing the state's most vulnerable residents.

"We can't continue to experiment when people's lives are at stake," said Paul Chase, public policy director for AARP of Indiana. "A systemwide fix is needed, and it's needed now."

From Lesley Stedman Weidenbener's report in the Louisville Courier Journal:

Problems with the new system emerged shortly after it was implemented in a few counties. Advocates for the poor began complaining that some families were being kicked off services for no reason or for minor paperwork errors.

Nonprofit groups said they were overrun with people seeking help with the state applications and requesting assistance as they waited for state services.

Paul Chase, state director for AARP Indiana, told lawmakers Friday that many of those problems still occur.

“There are serious and ongoing shortcomings,” Chase said. “Too many seniors, people with disabilities and others who are our most vulnerable citizens have faced monstrous challenges” to get services.

Early this year, Family and Social Services halted the rollout, saying the companies’ performance was unacceptable. Currently, only about 35 percent of Hoosiers receiving welfare services do so under the new system. * * *

Meanwhile, budget committee Chairman Sen. Luke Kenley, R-Noblesville, said he’ll create a subcommittee to take additional testimony about the issues before the October meeting. But he warned that the committee – four lawmakers and the governor’s budget director – was in no position to order the Daniels administration to make changes.

“We can review what is being done. We can make suggestions.” Kenley said. “But the executive branch runs the offices of FSSA.”

Friday, September 25, 2009

Updating this ILB entry from Sept. 14th, quoting from a lengthy and comprehensive Indianapolis Star story by Jon Murray, this afternoon Murray has filed this new story, headed "Woman to appeal denial of same-sex divorce." Some quotes:

A Hoosier woman who entered into a same-sex marriage in Canada plans to appeal a Marion County court's refusal this month to grant the couple a divorce, her attorney says.

Marion Superior Court issued an order Sept. 4 dismissing the separated couple's request for a divorce. Tara Ranzy and Larissa Chism were married in 2005 in Toronto. * * *

Attorney Karen Jensen said today that Ranzy authorized her to file a notice of appeal of the order and pursue the issue at the Indiana Court of Appeals.

The case illustrates the difficulty of divorce for married gay and lesbian couples who live in states that don't recognize same-sex marriages. Their marriages are void at home, and they can't request divorces in Canada or the handful of states that allow same-sex marriages because of residency requirements that require at least one member to live there six months or even longer.

An appeal in the Indiana case would have to address a 1997 Indiana law that defines marriage as between a man and a woman and bars recognition of same-sex marriages from other states.

The court's order, signed by Commissioner Jeffrey Marchal and Judge Heather Welch, says that law bars the court from recognizing Ranzy and Chism's marriage at all, even for purposes of divorce.

"Should Lawyers Be Allowed to Blog Critically About Judges?" by Julie Hilden, is available here. The conclusion:

Attorney bloggers who cross the line when it comes to wording should face backlash, but from their more decorous colleagues and fellow bloggers -- not from a quasi-governmental entity such as the bar, and not with the blessing of a governmental entity like a state supreme court.

Conway's blog entry [ILB - check here for background] itself makes the case against regulating attorneys' tone or wording. His "Evil, Unfair Witch" comment is an excellent example of speech that goes far over the line in its wording. Yet his point about speedy-trial rights – a point that, if listened to, could lead to changes in statutes or in judges' rules or practices – exemplifies the kind of worthwhile speech that could be chilled if bar rules leave attorneys unclear as to what they can and cannot say, and if attorneys decide, as a result, to stay silent.

"Schools Suits Against Students Who Mock Them Online" by Laura Hodes, is available here. It begins:

The rapid rise in popularity of sites like Facebook and Twitter has made it easy for students to bypass the traditional means of communicating and commiserating with a wide audience of other students: the school newspaper. The faculty newspaper adviser could control the content of each issue of the newspaper before its publication. But now, there has been a rise in "electronic harassmentor suck sites," through which students directly create web sites to mock a school or its teachers – without any gatekeeper present to exercise editorial control.

Ind. Courts - Yet more on "Lawyer ordered before judge on contempt issue"

The Wayne County Prosecutor’s Office has filed its response to an offer made by controversial defense attorney Sarah Nagy.

Nagy promised to do 25 hours of volunteer service at the Boys and Girls Club in Richmond and has asked that a civil contempt charge against her be dropped. In court papers dated Wednesday, Deputy Prosecuting Attorney Bill Hoelscher said essentially that he takes no position either way in regard to Nagy’s offer.

Nagy’s contempt hearing is set to take place on Monday. The complaint against her stems from numerous incidents of tardiness throughout the CJ Kennedy trial in Wayne Superior Court II.

Nagy has continued to work as a defense attorney in other Wayne County cases and has had at least one recent episode of tardiness.

Ind. Gov't. - State funding now follows the student, and this makes a big difference

"More students are crossing district lines: Families take advantage of change in state law that slashed cost of attending another school" was the headline to this story by Andy Gammil in the August 31st Indianapolis Star. From the story:

The change came about because the state legislature shifted funding for public schools away from local property taxes. Previously, parents who sent their children to another district were required to pay thousands of dollars in tuition because they weren't paying taxes to support that district.

In Marion County alone, the numbers have more than doubled, from 200 students paying last year to attend city schools outside their home districts to more than 500 going to schools outside their home districts this year.

"I'm in favor of it," Steve Deardorff said, adding that his daughter is excited to be at a school with people interested in the arts. "It worked well for us."

Under the new system, some districts charge no tuition and others charge a few hundred dollars -- but nothing like the several thousand that used to be required everywhere.

A few districts -- such as Franklin Township, Speedway and Warren Township -- have decided to take no new transfer students. Others have ramped up their enrollment, admitting many more students.

Washington Township Schools increased its number of transfer students from 140 to 207, and the number in Wayne Township Schools went from 15 to 100.

Indianapolis Public Schools jumped from 10 out-of-district students in 2008-09 to 111 this year, many of those students at magnet schools focused on public policy, the arts or medicine.

Reducing barriers to transferring has raised concerns about schools recruiting for sports, orchestras or other programs, but districts said they haven't seen any issues arise -- yet.

Definitive numbers won't be available until later in the fall, but districts said it doesn't look as if there are big winners or losers. Rather, the transfers appear to be canceling each other out. * * *

John Ellis, director of the state superintendents association, said many parents don't yet know about the transfer option. He said there's still considerable confusion among schools, especially when it comes to how much to charge.

Interest could continue to grow, he said, as more people learn about the law, or it could plateau as parents realize they might still have to shell out $500 if the district is charging.

"Transferring school districts getting easier: Cost of switching less expensive in Indiana now" was the headline to this long story by Kim Kilbride in the Sept. 21st South Bend Tribune. Some quotes:

When Rebecca and Michael Dube and their three kids left the city of Mishawaka for a larger house in the nearby suburbs about a year ago, their oldest daughter, Cailin Passmore, transferred out of Mishawaka schools.

Right away, Rebecca said, they missed the rapport with the teachers they'd had at Battell Elementary School, as well as the range of free extracurricular activities that are available there.

"We'd always liked Mishawaka schools and I wanted to get back to them," she said. "But I didn't know how tuition worked."

When she inquired about the cost of transferring Cailin back to Mishawaka, Dube said she was shocked to learn that it used to cost almost $6,000 a year.

"My jaw about dropped," she said.

But she was equally as excited that the price had fallen — beginning this school year — to $790 annually.

The Dubes were happy to pay that amount for Cailin to transfer to Twin Branch in Mishawaka, which is closer to their new house than Battell, and for her little sister, Brenna Dube, to start kindergarten this school year at Twin Branch, as well.

Thanks to a recent change in the way public schools in Indiana are funded, school districts that have chosen to open their doors to students in neighboring districts now are able to offer significantly lower tuition rates to those families

That's because state funding now follows the student.

So, rather than pay some $6,000 annually to send students to a public school in a nearby district, parents in this area are now paying anywhere from $200 to $1,000.

The reduced amount that's still the parents' responsibility, said Gregg Hixenbaugh, director of human resources and legal counsel for School City of Mishawaka, is related to local property taxes and is the portion that's not picked up by the state. * * *

But not every student who applied for admission was accepted.

Each application is scrutinized, Hixenbaugh said, to ensure that the student is in good standing in terms of academics, discipline and attendance at the school they're transferring from.

Furthermore, he said, students may not transfer for athletic reasons, and families must provide their own transportation.

Those who were accepted will be evaluated each year, he said, to ensure they're doing acceptably in Mishawaka schools.

It also will be necessary to ensure each year that the schools have the capacity for the extra students, he said.

What's more, since this reduced-rate transfer tuition option is brand new, he said, it won't be known until next year the exact amount of tuition that will end up being each family's financial responsibility.

That means, parents may end up owing money next year. Or, they may be eligible for refunds, he said.

As far as families who live in School City of Mishawaka's boundaries using the new option to transfer students out of the district, Hixenbaugh said, there have only been two.

Ind. Decisions - Another NFP COA decision reclassified

I respectfully dissent from the majority’s conclusion that there are two distinct police pursuits in this case that are separated by both time and distance. Rather, I believe there is only one pursuit and therefore would reverse one of Sanders’ convictions for resisting law enforcement.

Ind. Courts - "Trial about St. Joseph County judge's mandate order ends"

St. Joseph County residents will learn sometime after Oct. 13 whether Probate Judge Peter Nemeth's mandate orders for salary increases and physical improvements at the Juvenile Justice Center will stand.

A trial about those issues ended Thursday with St. Joseph County chief deputy auditor Cindy Bodle called as the only witness beside Nemeth to testify. * * *

Nemeth filed suit against St. Joseph County after reaching a stalemate with county officials over funding.

Nemeth took the witness stand Wednesday and for a short time Thursday, testifying that the improvements and raises are necessary in order to provide adequate services for the growing juvenile court caseload.

Nemeth and county officials are in a legal fight over funding the county refused to release in late 2008 to renovate parts of the JJC and provide raises for employees there.

In late 2008, the County Council and county commissioners approved Nemeth's request to transfer $313,788 from an unspent personnel fund to be used for JJC renovations, Bodle testified. The council and commissioners also approved Nemeth's proposal to tap juvenile probation user fees to pay for raises for eight managers totaling $60,000 a year.

County policy requires the signatures of at least two county commissioners on a requisition form for spending to go forward, Bodle said.

When commissioner Bob Kovach was asked to sign a requisition to OK the spending, he refused to sign, according to testimony. The two other commissioners in late 2009 were preparing to leave office, one for another job and another because he was defeated in the election.

As probate judge, Nemeth oversees budgets of about $2.2 million a year for juvenile/probate court and about $3.9 million a year for the JJC. St. Joseph County's overall budget totals about $64 million annually.

Nemeth testified that, contrary to popular belief and despite the county's cash-strapped status, many county employees have received raises in the past few years.

Bodle said some county employees have received raises, but typically because the raises were mandated by the state or because the employees involved took on additional duties. * * *

The attorneys on both sides must submit closing briefs by Oct. 13. William Satterlee, a Valparaiso attorney who is serving as a special judge for the case, will issue his ruling after that.

Yesterday's 2-1 COA opinion in the case of IHSAA v. Jasmine S. Watson (see ILB summary here) is the subject of a story today in the South Bend Tribune, reported by Alicia Gallegos, and headlined "Appellate court rules for ex-Washington High player Watson: IHSAA appeal denied in South Bend basketball case." Some quotes:

SOUTH BEND — College freshman Jasmine Watson can finally move forward from her battle to play basketball at Washington High School knowing she has the full backing of Indiana law.

In a decision filed Thursday, the Indiana Court of Appeals ruled in favor of Watson and the South Bend Community School Corp., upholding last year's trial court decision to let Watson play ball at Washington.

The court decision ends a lengthy battle between Watson's family and the Indiana High School Athletic Association, which said the teen transferred to Washington from Elkhart Memorial primarily for athletic reasons and was in violation of IHSAA rules. * * *

Watson was allowed to play the remainder of her senior year at Washington High School last winter after Senior Judge David Matsey ruled in her family's favor. But the IHSAA appealed the move in January, putting Washington High School at risk of having any wins that Watson played in forfeited.

In the 44-page appeals court order, Chief Judge John G. Baker and Judge Patricia Riley agreed that the IHSAA acted “arbitrarily and capriciously” when it ruled Watson was ineligible to play basketball in South Bend.

“The standard that the IHSAA applied to the Watsons was unreasonable, untenable and unrealistic,” the order reads. “... It is certainly possible that athletics played a role (in the move) but to say that athletics played a primary role is to ignore and disregard the evidence ... that this family was struggling and that (Valerie Watson) did what she believed to be the best thing for her children.”

A third appeals judge, Judge Ezra Friedlander, disagreed with the majority. He wrote there was considerable evidence that Watson was recruited to Washington and that the family's move was motivated by athletics. * * *

Watson is now a freshman at the University of Massachusetts, and her mother said she just finished up basketball conditioning. The family has done its best to move forward and is doing well, Valerie Watson said.

Updating these two entries (9/13 and 9/14) on the then-upcoming meeting of the legislative Regulatory Flexability Committee, Niki Kelly of the Fort Wayne Journal Gazette has this report on Tuesday's meeting - some quotes:

As the nuclear industry prepares to ramp up construction nationwide, Indiana legislators considered Tuesday whether to allow utilities to recoup some project costs from customers years before a reactor is in operation.

House and Senate members heard testimony about an incentive known as “construction work in progress,” whereby utilities can charge ratepayers for interest costs on the overall project from the beginning.

When a plant is up and running, the utility can start recovering the actual construction costs though the existing regulatory structure.

In Indiana, charging ratepayers for construction work in progress is allowed only for “clean coal” power plants that release less carbon dioxide than conventional plants.

Rep. Win Moses, D-Fort Wayne, and Sen. Jim Merritt, R-Indianapolis, co-chaired the Tuesday meeting of the Regulatory Flexibility Committee. Moses opposes the measure; Merritt supports it. They said there are no formal applications to build a nuclear power plant in Indiana but that American Electric Power might have interest in adding to its Cook Nuclear Plant along Lake Michigan’s eastern shoreline.

Thursday, September 24, 2009

Updating this Sept. 6th ILB entry re the Supreme Court's call for amicus briefs in the case of Anthony Malenchik v. State relating to the use of "scoring models," the ILB has now obtained and posted copies of the first three:

Ind. Decisions - One case granted transfer Sept. 24th

The Clerk's transfer list should be available sometime tomorrow or perhaps not until Monday. Meanwhile, the ILB has received notice that transfer was granted today in the following case:

Lorraine Bunn as Personal Representative of the Estate of Robert P. Bunn, Deceased, and Robert L. Bunn v. Indiana Department of Transportation -- 50A03-0810-CV-504 -- This was a 2-1 NFP opinion from June 11th, see ILB summary here, 3rd case. "The sole issue presented is whether the trial court erroneously granted summary judgment to INDOT upon concluding that INDOT owed no duty of care to the injured parties."

The Indiana Supreme Court is appointing Senior Judge Jack L. Brinkman to serve as Judge Pro Temp of the Madison Circuit Court. Judge Brinkman retired from Madison Superior Court 2 on 12/31/08. He is a senior judge who will now serve as Madison Circuit Court Judge Pro Temp until the Governor appoints a successor or until further order of the Supreme Court.

Judge Jack Brinkman’s semi-retirement lasted less than a year. The Indiana Supreme Court on Thursday unanimously appointed the senior judge to temporarily fill the bench seat being vacated by Fredrick R. Spencer, who is resigning effective today.Brinkman “will now serve as Madison County Circuit Court judge pro temp until the governor appoints a successor or until further order of the Indiana Supreme Court,” said Kathryn Dolan, spokeswoman for the state’s high court.

Brinkman, a Democrat who elected last year not to run for a sixth term as Madison Superior Court 2 judge, returns to familiar duties on the bench under extraordinary circumstances.

Spencer’s resignation is the second judgeship in the county vacated within a year. Superior Court 4 Judge David W. Hopper died in February at age 60.

“I don’t think any of us could have predicted within a year’s period of time the untimely loss of Judge Hopper and the retirement of Judge Spencer,” Brinkman said.

He vowed to create a transition as seamless as possible for the judge who will be appointed to serve until the next general election in 2010.

“The staff will be intact, and I’m sure the operation will go on smoothly,” he said. “Anytime there’s a transition, there will be some continuances and some matters that will have to be reset. Our intention is to take care of business so whoever the appointee is will not come in and inherit a backlog.” * * *

Since he opted not to seek re-election, Brinkman has continued to have a presence in the Madison County courthouse, working in a capacity that helps alleviate the caseload and allows him to fill in as a substitute judge when needed. He said he plans to return to that part-time work after a new judge is appointed.

Ind. Decisions - Supreme Court decides Pendergrass v. State

Richard Pendergrass was convicted of two counts of child molesting based in part on DNA evidence showing he was very likely the father of the victim‘s aborted fetus. The State‘s witnesses to this effect were a laboratory supervisor with direct knowledge of the processing of the samples and an expert DNA analyst who used the laboratory‘s print-outs to render an opinion. Pendergrass contends his rights under the Confrontation Clause were violated because the State did not present the technician who ran the samples through the laboratory‘s equipment. We conclude that the proof submitted was consistent with the Sixth Amendment as recently detailed in Melendez-Diaz v. Massachusetts. * * *

Dickson and Sullivan, JJ., concur.
Rucker, J., dissents with separate opinion in which Boehm, J., concurs. [J. Rucker's dissent, which on p.11, concludes] In sum, despite whatever ambiguity Melendez-Diaz may have created on the question of who must testify at trial, it appears to me the opinion is clear enough that a defendant has a constitutional right to confront at the very least the analyst that actually conducts the tests. "A witness‘s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination." Id. at 2531 (citing Crawford, 541 U.S. at 54). Because Ms. Powers did not appear at trial, and because there was no evidence of her unavailability or a prior opportunity for Pendergrass to cross-examine her, the trial court erred by admitting into evidence Ms. Powers‘ testimony by way of the Certificate of Analysis and Profiles for Paternity Analysis. I therefore respectfully dissent on this issue.

Appellant-petitioner Anita (Handy) Oberlander appeals the trial court's order denying her request for relief from judgment, arguing that the trial court erred by refusing to modify its decision to award custody of Anita's child with appellee-petitioner Kevin Handy to Kevin. Finding that Anita is not entitled to relief pursuant to Trial Rules 59 or 60, but that the trial court should consider whether a modification of custody is warranted, we affirm and remand for further proceedings. * * *

Had the trial court felt free to weigh DCS's uncontroverted recommendation that Anita be given custody of A.H. and Anita's full version of events—much of which is undisputed and much of which was not even allowed into the hearing—against Kevin's evidence from the uncontested final hearing, it is entirely possible that a different result would have been reached. Therefore, we remand this matter to the trial court so that it can revisit this case and weigh all of the evidence to determine whether a modification of the current custody arrangement is warranted. We urge the trial court to look to the factors set forth in Indiana Code section 31-17-2-8 and apply those factors explicitly in its final custody order.

The judgment of the trial court is affirmed and remanded for further proceedings consistent with this opinion.

FRIEDLANDER, J., concurs.
RILEY, J., dissents with opinion. [that begins, at p. 12] I respectfully dissent from the majority's decision to affirm the trial court's Order. In its opinion the majority attempts to please everyone: on the one hand, it affirms the trial court's Order, while at the same time the majority directs the trial court to reconsider its custody determination in line with Anita's request. While I agree that the custody determination, as it is ordered by the trial court, has to revisited, I would reverse the trial court's decision on Anita's motion to correct error and remand for a new trial, thereby necessitating custody of A.H. to remain with Anita until a hearing could be held.

Appellant-petitioner P.S.S., by next friend, Barrington A. Smith, appeals the juvenile court’s order denying her petition to establish paternity and dismissing the cause of action. P.S.S. contends that the juvenile court erred by concluding that it did not have jurisdiction over her petition and that she is not entitled to raise the paternity issue when it was already decided during her parents’ dissolution proceeding. Finding no error, we affirm. * * *

FRIEDLANDER, J., concurs.
RILEY, J., dissents with opinion. [that begins, at p. 8] I respectfully dissent from the majority’s decision affirming the juvenile court’s order which dismisses P.S.S.’s petition to establish paternity. While I agree with the majority’s stance on the jurisdictional issue, I part ways with their treatment of the merits of P.S.S.’s action.

The State appeals the trial court's order granting William J. Parham's petition for post-conviction relief and raises one issue, which we restate as whether the trial court properly granted Parham's petition for post-conviction relief. We reverse. * * *

Here, Parham received a significant benefit from pleading guilty. Pursuant to the plea agreement, the State agreed to reduce the Class B felony robbery charge brought under Cause Number 216 to a Class C felony. Additionally, the thirty-five year sentence provided for in the plea agreement was substantially less than the possible maximum sentence Parham could have received under Cause Numbers 128 and 216, which the post-conviction court found was fifty-eight years. In striking a favorable bargain with the State, Parham gave up the right to challenge the imposition of unauthorized consecutive sentences. See Stites v. State, 829 N.E.2d 527, 529 (Ind. 2005); Lee, 816 N.E.2d at 40; Gonzales v. State, 831 N.E.2d 845, 847 (Ind. Ct. App. 2005), trans. denied. Therefore, we conclude that the trial court erred in granting Parham's petition for post-conviction relief, Reversed.

Ind. Decisions - More on "IHSAA appealing Jasmine Watson ruling"

The Indiana High School Athletic Association served notice Friday of its plans to appeal a Dec. 19 St. Joseph Circuit Court ruling allowing senior Jasmine Watson to play for the team.

Jasmine, a 6-foot-3-inch center who has verbally committed to play next year for the University of Massachusetts, transferred from Elkhart Memorial at the start of the school year. Elkhart Memorial refused to sign off on her eligibility, saying it believed she transferred to Washington for primarily athletic reasons, a violation of IHSAA rules.

When the IHSAA agreed, Jasmine sought a preliminary injunction against the ruling in St. Joseph Circuit Court. Her mother, Valerie, who had her hours cut at an Elkhart factory and lost her home to foreclosure, argued that the family moved to South Bend for economic reasons and to be closer to their extended family on the city's west side.

I. Mootness. Although the parties do not raise the issue, it is likely that many readers will wonder why this matter is anything other than moot, given that the 2008-09 basketball season concluded months ago and Jasmine has since graduated from high school. * * * [I]t is well established that ―an otherwise moot case may be decided on the merits if the case involves a question of great public interest. * * * Moreover, the specific issue of a family being forced to relocate because of financial pressures is very likely to recur. Therefore, even if the issue herein were moot, we would decide the merits under the public interest exception to the mootness doctrine.

II. Standard of Review. * * * In reviewing the IHSAA‘s decision, the trial court was to apply an ―arbitrary and capricious standard of review * * *

III. The Injunction: Likelihood of Success on the Merits. * * * We find that the record amply supports the trial court‘s conclusions that the IHSAA‘s conduct rose to the level of willful and unreasonable decision-making that was in disregard of the facts and circumstances before it and that, consequently, it acted arbitrarily and capriciously. Therefore, the trial court did not err by finding that the Watsons established a likelihood of success on the merits and entering a preliminary injunction prohibiting the enforcement of the ineligibility decision.

IV. The Injunction: Breadth. The IHSAA also argues that even if the injunction was properly entered, it was overbroad. * * * Though the IHSAA protests that its decision concerned Jasmine‘s eligibility to take part in athletics rather than Coach Scott and/or Washington‘s violations of the rules, the IHSAA made it a part of the underlying issues herein when it explicitly found that Coach Scott had violated the Undue Influence Rule as part of its order. Given that the trial court found that the IHSAA acted arbitrarily and capriciously in that regard, it is logical that the trial court would have deemed it necessary to prevent the IHSAA from taking further action against Washington and its coaches based on these facts. Therefore, we do not find that the injunction order was overly broad.

The judgment of the trial court is affirmed.

RILEY, J., concurs.
FRIEDLANDER, J., dissent with opinion. [which begins, at p. 29] I respectfully dissent from the Majority‘s conclusion that the trial court in this case correctly entered an injunction preventing the IHSAA from enforcing its eligibility determination. In my view, the Majority decision suffers the same flaw as did the trial court‘s – it employs an over-zealous review that does not accord the IHSAA decision sufficient deference.

Today Jennifer Tangeman of the Logansport Pharos-Tribune has a terrific story headlined "Are nursing homes now tax-exempt? Lawmaker, attorney disagree on law’s impact":

A Logansport lawmaker says he doesn’t believe an amendment to this year’s state budget opened the door to tax refunds for nursing homes across the state.

State Rep. Rich McClain says the exemption applies only to those entities that are indeed not-for-profit organizations. The for-profit language in the amendment, he said, applies only to those nonprofit organizations that failed to file for their nonprofit status on time.

McClain said he researched the details of the bill with a staff member in the House Ways and Means Committee after hearing from constituents who were concerned by reports out of last week’s meeting of the Cass County Council.

County council president Ralph Anderson had announced at the meeting that a law had been passed to allow for-profit nursing homes to file for an exemption from property taxes.

County Assessor Judy Lewis said she understood that any for-profit nursing home could apply to receive future tax exemptions, as well as a refund for already-paid taxes back to the year 2000.

“They can ask for all of the money back from the last 10 years,” Lewis said.

McClain said that wasn’t the intent of the amendment.

“In this special session budget bill was a statement that basically says if you are a not-for-profit and you did not file, you have until Sept. 1 of this year to file that, but you have to be a not-for-profit, or 501(c)3, to get that special tax exemption,” he said.

Law firms across the state, however, have been filing for the exemption for for-profit nursing homes. Pete Mallers, an attorney with Beers Mallers Backs and Salin LLC of Fort Wayne, filed on behalf of Logansport’s Woodbridge Health Campus, and he contends for-profit homes are eligible for the exemption.

“Indiana law changed a number of years ago in a court decision that opened up the exemption status for nonprofit nursing homes as well as for-profit nursing homes,” Mallers said. “But the Indiana General Assembly passed legislation last summer that broadened the scope of that and allowed tax-exempt entities that had not previously filed for the tax exempt status to file for refunds.”

Mallers said the statute was clear in stating that for-profit nursing homes can file.

“It has been Indiana law for a number of years,” he said. “And many, many people were not aware of that. Filing for the exemption is completely within the confines of the law. Otherwise it would not have been done.”

According to Mallers, the only difference is that now those entities can apply for a decade’s worth of refunds.
Lewis noted that disagreement could have a huge impact on the county budget. She noted that the refunds for Woodbridge Health Campus and Camelot Care Centers would total around $30 million.

McClain said similar cases have already been turned down by Indiana Tax Court, and he predicts any local cases will have a similar outcome.

“A for-profit home filed for the exemption in Hamilton County, and the state tax court determined they were not due that status,” McClain said.

He said there was also a $40 million case in Allen County that is still in litigation. He said the law firms were trying to make their cases from certain terminology in the bill.

“Property tax is a complicated tax,” he said. “I know of nobody in the state of Indiana that has filed and won. That’s the reason you have the not-for-profit status.”

State Sen. Randy Head said he intended to research the issue in greater depth.

“This is obviously something we have to address,” he said. “It is definitely an issue I want to look into further.”

Where is this alleged exemption language? I've looked through the massive "budget" bill, HEA 1001ss. So far, the only thing that looks to be close is SECTION 479, a noncode provision.

Ind. Courts - Still more on "Lawyer ordered before judge on contempt issue"

Indianapolis attorney Sarah Nagy has once again asked a Wayne County judge to drop a civil contempt charge against her. But this time she's backing it up with cash and the promise of community service.

Nagy this week filed a request asking Wayne County Superior Court 2 Judge Gregory Horn drop a contempt allegation against her, adding that she has already made two donations to the Boys & Girls Clubs of Wayne County totaling $350.

She also pledged to do 25 hours of volunteer service at the Richard E. Jeffers Boys & Girls Club or at the Boys & Girls Club at Central United Methodist Church in Richmond. She offered to do the community service on or before Oct. 30.

Horn had not ruled on the request Wednesday. Instead, Horn gave Wayne County Deputy Prosecutor William Hoelscher until today to file a written objection to Nagy's request.

Horn had set a hearing for Monday in the contempt case against Nagy. Horn declined to comment on Nagy's request Wednesday.

Nagy, who represented Charles "C.J." Kennedy during a four-week trial in 2008, faced the civil contempt-of-court charge for allegedly not complying with Horn's order that she make a contribution to the Boys & Girls Clubs of Wayne County.

Horn admonished Nagy at the end of the Kennedy trial in May for repeatedly being tardy during the trial and offered her the option of paying a fine or making a donation to the local charity. Nagy has said she made the contribution to the Boys & Girls Clubs of America.

Courts - "How does the concept of plain view apply to the modern technology of a computer?"

Today John R. Emshwiller of the Wall Street Journal has this must-read article ($$) headed "Courts Wrestle With Searches When the Evidence Is Digital." It begins:

For decades, investigators have known that if they enter a suspect's home with a search warrant to look for illegal guns and find sacks of cocaine lying on the coffee table, they can seize the drugs even though the warrant only gave them permission to look for the guns. That is because courts have said authorities can act on evidence of a second crime that was in their "plain view."

But how does the concept of plain view apply to the modern technology of a computer, which might have thousands of files that are easily scrolled, or a cellphone, which can contain all manner of incriminating pictures?

A recent ruling by the federal Ninth Circuit Court of Appeals addressed this question, and the decision could reshape what government investigators can -- and can't -- do when searching digital devices for evidence of crime.

The case involved the Justice Department's high-profile probe of a Northern California company suspected of supplying illegal steroids to professional athletes, including some baseball players.

The Indiana Commission on Judicial Qualifications was investigating Spencer’s conduct regarding the 2007 State v. Ward case, in which Kathy Jo Ward was convicted of voluntary manslaughter in the death of her husband. * * *

Spencer said he would retire effective 11:59 p.m. Friday with full benefits, including 60 percent of his salary. He is a Democrat with 26 years on the bench.

“I have almost 40 years of public service,” he wrote in his resignation letter sent to Gov. Mitch Daniels on Tuesday. “I have served my county, my state, my country and my hometown. “I look forward to a less stressful life.”

Spencer would not comment on the Commission on Judicial Qualification’s investigation, nor on the State v. Ward case. “I’m not interested at all in discussing this situation,” he said. “There are good reasons for it.”

Allegations of misconduct against Spencer in the State v. Ward case include initiating ex parte communications concerning matters pending in his court, deciding issues prematurely and on the basis of improper considerations and attempting to deprive Ward of her constitutional right to appeal and her statutory right to seek modification of her sentence, according to a letter sent by Anderson attorney Jeff Lockwood to the commission in August 2008.

Lockwood, along with attorney Bryan Williams, was the defense counsel for Ward in the trial, which concluded with Ward’s conviction on June 29, 2007.

According to Lockwood’s letter, on July 1, 2007, “Spencer engaged Mr. Williams in an ex parte conversation declaring he had already decided what Ms. Ward’s sentence would be.”

He allegedly told Williams that because Ward was white and had killed her husband, who was black, “he intended to impose the advisory sentence of 30 years so that the decedent’s family members from Chicago would not be upset with the leniency of his sentence.”

Lockwood’s letter said Spencer further told Williams he would modify Ward’s sentence to the minimum 20 years if she waived her right to appeal the sentence. Lockwood and Williams later told Spencer they couldn’t advise their client to give up her appeal.

“We did not believe his reliance upon the imagined reaction of the victim’s family was a proper sentencing consideration and that we could not in good conscience advise our client to waive her constitutionally guaranteed right of appeal in return for a judicial promise that could not be enforced,” Lockwood wrote.

Spencer sentenced Ward to 30 years in prison, and her sentence appeal was later denied by the Indiana Court of Appeals. Spencer then declined to modify Ward’s sentence because “(defense counsel) had toyed with him by allowing Ms. Ward to appeal her conviction,” Lockwood wrote.

On Wednesday, Lockwood said he didn’t know whether the investigation into Spencer’s misconduct had prompted his resignation. “Regardless of what allegations were made against him, to my knowledge he’s never admitted any misconduct,” Lockwood said. “He might be resigning because of ill health or because he thinks it’s time to leave. He’s still a sitting judge, and he’s entitled to all the respect due his office.”

Lockwood said he would not pursue any additional actions against Spencer in the State v. Ward case. “Since that investigation is closed, it’s over as far as I’m concerned,” he said. “There wouldn’t be anything else I could do or would care to do. I did what I thought I needed to do under the circumstances.”

Lockwood said, despite his allegations against Spencer, it did not make him happy to see the judge resign. “I wrote the letter because I felt that I had to,” he said. “I don’t take any pleasure in it. It’s one of the worst things and most unpleasant things I’ve had to do in my career.

“Obviously, I thought that he was wrong or I wouldn’t have written the letter.” Lockwood and Williams still represent Ward and expect a hearing date within the next couple of months on a petition to modify her sentence. The case has been moved to Madison Superior Court 3 under Judge Thomas Newman.

• Judge Fredrick Spencer was suspended for 30 days in 2003 after he appointed a special prosecutor without having a hearing in a 2001 case involving the placing of explosives around attorney John Blevins’ home by a group of teens.
• Spencer was publicly reprimanded by the Indiana Commission on Judicial Qualifications in 2001 after a re-election television ad allegedly violated the Code of Judicial Conduct, which prohibits judicial candidates from making promises of conduct in office, making statements to commit them to issues likely to come before the court and failing to maintain the dignity of the office.
• In 1999, Spencer received a public admonition from the commission for allegedly entertaining and granting an ex parte petition for change of child custody without notice to the custodial father and for failing to communicate with a Florida judge who had assumed jurisdiction over the case.

Wednesday, September 23, 2009

Madison Circuit Court Judge Fredrick R. Spencer is resigning as Judge of the Madison Circuit Court effective September 25, 2009. The Indiana Commission on Judicial Qualifications was investigating Judge Spencer's conduct regarding the State v. Ward case (48C01-0612-MR-00480). The Commission decided to close its investigation in light of Judge Spencer's resignation, as the Commission determined that a prompt resignation was in the best interest of the judiciary and the public.

Judge Spencer is sending a letter to Governor Daniels informing the administration of his resignation. The Governor appoints a judge to fill the vacancy. Meantime, the Indiana Supreme Court will appoint a judge pro tem.

Ind. Gov't. - "State official linked to sex calls resigns"

Gary Wilfert, senior state steward of the Indiana Horse Racing Commission, resigned today after The Indianapolis Star inquired about what appeared to be calls to a phone sex service made from his state-issued phone.

Joe Gorajec, executive director of the IHRC, initiated his own investigation after The Star’s inquiry. He declined to discuss his investigation or any discipline there might have been had Wilfert not resigned.

“I’m not going to get into any of the details,” Gorajec said.

Stewards are the referees of horse racing, enforcing rules and regulations at the track.

Acting on an anonymous tip, The Star made a public records request for Wilfert’s state phone records. The records appeared to show five calls to a phone sex service earlier this year.

State policy on the use of phones prohibits employees from accessing “materials that are considered pornographic, obscene, sexually explicit … ”

Ind. Courts - "Judge Nemeth vs. St. Joseph County trial under way"

A trial is under way today that will decide whether St. Joseph County Probate Judge Peter Nemeth has the authority to mandate raises for some court employees and spend $313,000 for physical improvements at the Juvenile Justice Facility.

Nemeth filed suit against St. Joseph County after reaching a stalemate with county officials over funding matters.

Nemeth took the stand this morning, testifying that the improvements and raises are necessary in order to provide adequate services for the growing juvenile court caseload.

Nemeth and county officials are in a legal fight over $313,000 in funding the county refused to release in 2008 to renovate parts of the Juvenile Justice Center. Nemeth issued a judicial mandate order seeking to obtain the money.

Nemeth also issued a judicial mandate seeking to use probation services fees to fund raises for the juvenile/probate court's executive secretary, fiscal officer, JJC director and five other managers. The proposed raises range from 10 percent increases to nearly 44 percent in the case of the fiscal officer.

The employees listed haven't received raises in several years, and the increases would put them at comparable salaries to employees in Superior and Circuit courts, Nemeth said.

The JJC renovations sought are necessary in order to provide adequate services, Nemeth said.

"We are having to release children into the community without them having the adequate supervision they need," he said.

The case is being heard by attorney William Satterlee of Valparaiso, who was appointed to act as a special judge for the trial.

Ind. Decisions - Of interest 7th Circuit bankruptcy opinion today

When defendant-appellant
Dr. Bruce S. Smith filed a Chapter 7 bankruptcy petition
in September 2005, he failed to include appellees Trina
Tidwell and Sandra Sterling-Ahlla on his schedule of
creditors holding unsecured, nonpriority claims. Tidwell
and Sterling-Ahlla had sued Smith in state court for
sexual assault. Because Smith omitted Tidwell and
Sterling-Ahlla from his list of creditors, neither of them
was sent notice of his bankruptcy petition. Their
counsel learned of Smith’s pending bankruptcy only
weeks before his discharge and took no action at that time.

Roughly one year after the discharge, Tidwell and
Sterling-Ahlla (whom we shall also refer to as the “plaintiffs”)
filed motions asking the bankruptcy court for
leave to proceed with their lawsuits against Smith, along
with adversary complaints asking the court to declare
their claims against Smith nondischargeable pursuant
to 11 U.S.C. § 523(a)(3)(B) and (a)(6). Following an evidentiary
hearing, the court granted their request in
part. The court found that Smith had deliberately and
fraudulently failed to schedule the plaintiffs’ claims and
that their counsel had not been put on notice of the bankruptcy
in time enough to permit them to seek a declaration of nondischargeability prior to Smith’s discharge. Tidwell v. Smith (In re Smith), 379 B.R. 315 (Bankr.
N.D. Ill. 2007). The court therefore granted Tidwell and
Sterling-Ahlla leave to proceed with their suits against
Smith in state court and reserved judgment as to whether
their claims were in fact nondischargeable pursuant to
section 523(a)(6) until such time as they prevailed in the
state-court litigation. Smith appealed to the district court,
which affirmed the bankruptcy court’s decision. Smith v.
Tidwell (In re Smith), No. 08 C 46, 2008 WL 4067306
(N.D. Ill. Aug. 27, 2008).

Smith again appeals, contending that the evidence does
not support the bankruptcy court’s findings that he
deliberately omitted Tidwell and Sterling-Ahlla from his
schedule of unsecured creditors and that they did not
become aware of his bankruptcy in time to seek a declaration
of nondischargeability before the bankruptcy
proceeding was closed. We agree with the lower courts
that the eleventh-hour notice of the bankruptcy that
Tidwell and Sterling-Ahlla received did not afford them
sufficient time in which to protect their rights before
Smith was discharged. Their post-discharge complaints
were therefore timely, and we affirm on that basis without
reaching the question of whether Smith omitted
Tidwell and Sterling-Ahlla from his list of unsecured
creditors with fraudulent intent.
* * *

Under these circumstances, the bankruptcy court appropriately
exercised its discretion to allow the state-court
cases against Smith to proceed. It committed no error in
finding that Tidwell and Sterling-Ahlla received insufficient
notice of Smith’s petition to have compelled them
to take action to preserve their rights before the bar date
and before Smith was discharged; their post-discharge
adversary complaints and requests for leave to proceed
with the state-court litigation were therefore timely.
AFFIRMED.

Ind. Law - Words matter, regardless of a legislator's, or legislature's, intent

Controversy over two key state laws adopted in recent years serves as a reminder that the language in a given law is everything, regardless of the legislature’s intent.

In the end, state legislators themselves are responsible for being precise in the language they place into the law.

Such precision is even more important when the bills are highly controversial or deeply affect many Hoosiers.

The recent controversies concern:

The voter ID law. When the Indiana Court of Appeals struck down the law last week, Republican Gov. Mitch Daniels was livid, and Republican state Rep. Brian Bosma – the House Republican leader – said the law was a model for the nation.

Debate in the legislature rightly concerned whether the law would harm certain voters – particularly poorer voters who might not easily be able to obtain their birth certificates. But, it is now clear, someone should have asked whether it was right to require voters going to polls to have IDs while those casting absentee ballots got a pass.

The Court of Appeals said, no, it isn’t right. Or, more importantly, it isn’t constitutional.

Knowing that this law was destined to end up in court, its Republican sponsors should have scrutinized every line of that bill. Now, unless cooler heads prevail and the unneeded ID requirement is tossed, it seems likely that its proponents will pass a new law, establishing ID requirements for absentee voters.
Property tax caps. Some Republicans were extremely upset when they learned that their generous homestead deductions and the property tax caps they adopted – which apply only to the homestead property – do not apply to pools, gazebos and other property add-ons.

State Rep. Jeff Espich, the Republicans’ chief budget expert in the House, blamed the Department of Local Government Finance, saying it “acted casually and without regard to our intent. … It’s terrible.”

In fact, the department – headed by a Daniels appointee – did exactly as the legislature directed in the words lawmakers placed into state law. If those words did not accomplish what the legislative advocates wanted, it is their own fault for overlooking the definition of a homestead – which, after all, the legislature defined.

Sometimes, government workers, constituents and lawmakers themselves discover technical problems in legislation that they can easily fix on Organization Day. But the voter ID and property tax issues are fundamental policy questions that were overlooked, and it isn’t the first time. Much property tax legislation in recent years, for example, has addressed the unintended consequences of previous property tax legislation.

The recent controversies should prompt more lawmakers to more often contemplate not only whether the words they place into the law accomplish what they want but also what other possible consequences will arise.

Of course, that is easier said than done. Lawmakers cast votes on dozens and dozens of bills and amendments in a short time frame, and no one can read all the words. And, in many cases, it is staff members, not lawmakers, who actually write the bills.

But the sponsors of bills should take special responsibility in making sure all the i’s are dotted, and committee chairs should also ask big-picture questions.

The latter entry includes quotes from another JG editorial that concluded: "The disagreement is the latest that shows how important it is for legislators and their legal advisers to scrutinize the precise language of the bills they author and shepherd through the legislative process."

The ILB added: "This brings to mind a recent Supreme Court ruling, Utility Center, Inc., d/b/a Aquasource v. City of Fort Wayne, where the Court wrote, re the wording of the law as passed and the intent of a legislator:

Finally, we make note of the fact that Senator David C. Long, the author of chapter 30 when it was enacted by the Legislature in 1999, filed an affidavit and supporting exhibits with the trial court in this matter, explaining his “intent as the author” of the statute. The trial court declined to consider the affidavit and the Court of Appeals affirmed, reflecting this Court’s policy that “[i]n interpreting statutes, we do not impute the opinions of one legislator, even a bill’s sponsor, to the entire legislature unless those views find statutory expression.” * * * We respect Senator Long’s work in this field but, for the reasons set forth above, are unable to conclude that his intent in this regard was enacted into law.

"Another case of intent of legislator foiled by the law itself" is the heading of this July 17, 2007 ILB entry which quotes an Indy Star story headed "New health insurance law won't help all: Many Hoosiers, including lawmakers, surprised by loophole for some employers."

And of course there is the recent series of ILB entries under the heading "Apparently there are all sorts of surprises in the special session budget." And the continuing surprise of the many substantive provisions of law not included in the Indiana Code, a practice that continues unabated.

Ind. Courts - More on: "The public can now be the judge of whether a former South Bend Police officer used excessive force while arresting a man after a high speed chase"

Updating this ILB entry from yesterday, in South Bend different viewers are having different (ILB - Rashomon-like?) reactions to "city released dash cam video of a February 2009 traffic stop during which South Bend Police Cpl. Jason King was accused of using excessive force" and reprimanded by the police chief. A grand jury later decided not to indict King on any criminal charges. Kelli Stopczynski of WSBT South Bendreports today in a story complete with the video:

We’ve had a huge outpouring of e-mails and comments on our website about the dash cam video that shows two police officers hitting a suspect during a February traffic stop. Some people are going so far as to say they think it’s police brutality. Others, however, can see King’s side of the story and they think he was justified. * * *

Some of them now question their own safety with police.

When asked about his response to negative comments about King or the South Bend force in general, [Fraternal Order of Police president Lt. Scott Ruszkowski] said they’re not bad cops.

“[I’m] not saying what he did was right or wrong. Obviously a grand jury said he didn't do anything wrong. However, we all make mistakes. There's not an endeavor in life that nobody makes mistakes in, police work included,” said Ruszkowski.

That said, Ruszkowski says dash cam video doesn't always tell the whole story. Both he and another South Bend police officer told WSBT they think the department will see more police brutality complaints as a result of this video being released.

WSBT also contacted Katlun’s attorney. He said he and his client are prepared to move forward with a civil suit against the officers involved in the call. They contacted the city in July, and the city has 90 days to respond before they can move forward with the suit.

Environment - "Hog Lawsuits Raising Stink in Missouri"

Hog odor lawsuits are nothing new. The issue of what constitutes an agricultural nuisance has been argued anywhere hogs are raised.

The debate has new traction in Missouri, where some say flawed right-to-farm legislation encourages multimillion-dollar lawsuits like the ones against Premium Standard and its Virginia-based owner, Smithfield Foods.

In an internal memo accidentally e-mailed to The Kansas City Star last year, Smithfield attorneys estimated the company's exposure to litigation against Premium Standard at $150 million to $200 million. Smithfield, the world's largest pork producer, purchased Premium Standard in 2007.

Speer says he has at least 350 cases pending in Missouri against large hog operations. In contrast, only three were on file in Iowa, the nation's biggest pork-producing state with more than six times the number of hogs Missouri produces. Unlike Iowa's hog farms, which Speer says are traditionally family-run, Speer's targets in Missouri -- the seventh-largest hog state -- are corporate mega-farms.

"In Missouri, there is no limit to the amount a plaintiff can recover for an alleged nuisance, no matter how slight," Smithfield said in a statement to The Associated Press. "The potential for an unlimited recovery for a minor injury makes Missouri extremely attractive to out-of-state plaintiffs lawyers looking for big paydays."

In sum, the forty-foot easement along the shoreline of Blue Lake was created by express reservation to the lot owners of the Harrold Additions via the Lakeside Lot Deeds. The permanent injunction imposed to protect the lot owners’ rights in the easements was not vague or overbroad. Affirmed.

"Waiver notwithstanding, ABS filed its motion for summary judgment and designation of evidence on December 3, 2008. Pursuant to Trial Rule 5, both of these documents have a certificate of service that indicates that each document was sent via first class mail to Henson’s counsel. Henson never filed a response to ABS’s motion for summary judgment, did not seek an extension to file a response, and did not request permission to file a belated response. Thus, because Henson never asked the trial court for permission to file a response to ABS’s motion for summary judgment, it cannot be said that the trial court refused to allow Henson to file a response. Therefore, we cannot say the trial court erred in this regard."

Damairiss Walker v. Three Rivers Environmental (NFP) - "In sum, the Board‟s present findings in this case are inadequate to permit intelligent appellate review of its decision to deny any benefits to Walker. Thus, it is necessary to remand to the Board for the entry of more detailed findings, despite the fact that neither party challenged the specificity of the findings in this appeal."

Ind. Decisions - Another NFP COA decision reclassified

“[F]ailure to pay a probation user fee where the probationer has no ability to pay certainly cannot result in a probation revocation.” Woods, 892 N.E.2d at 641. As noted above, a defendant’s ability to pay is based upon such factors as his financial information, health, and employment history. Champlain, 717 N.E.2d at 570. The State had the burden of proof, but presented no evidence regarding Szpunar’s ability to pay. Indeed, the State’s evidence did not address: (1) the fact that the probation department deemed Szpunar compliant in a status hearing on September 10, 2007; (2) his heart attack and surgery in November 2007; (3) Fifer’s acknowledgement in a hearing on June 30, 2008 that Szpunar had “been unable to work”; or (4) the fact that Szpunar had been released from the St. Vincent Stress Center just four days earlier. Id. at 73. The trial court abused its discretion in revoking Szpunar’s probation. Reversed.

The ILB has just received this statement of James H. Voyles, Jr., President of the Association:

Judicial independence is the cornerstone of our democracy. The ability to have an unbiased, impartial judiciary determine the rights and remedies of aggrieved parties is one of our most basic liberties. Our constitution is founded upon this premise, and our court system provides opportunity for fair and final review of our laws and their practical application. As citizens, we have the right to be heard and to challenge rulings by judicial process. Indeed, our legal system is structured to permit judicial review to higher courts to afford litigants the ability to seek redress for unfavorable rulings. The court of judicial process is the appropriate forum for such relief; the court of public opinion is not.

The Indianapolis Bar Association and its Committee on Judicial Criticism remains steadfast in its position that public criticism of judges has no place in the judicial process. The IBA commends those who are unhappy with court rulings to the appropriate legal process for relief, not to the newspapers and airwaves to lodge personal attacks on the judges who are charged with the difficult task of preserving our constitutional rights. Recent articles concerning the overturning of Indiana’s voter ID law improperly called into question the motive and integrity of the bench in reaching its decision. Regardless of personal opinion as to the ruling, that our judicial officers and our judicial process should command a greater respect goes unsaid. We enjoy freedoms and rights that many do not, and with that comes responsibility to respect the courts and those that take the oath to protect the integrity of the office of the judiciary.

The Indiana Court of Appeals last week said it is unconstitutional to require voters to present a photo ID to be eligible to vote.

It was a victory for the people of Indiana, who didn't need the imposition of another requirement before exercising their voting privileges.

When the law was passed in 2005, it was challenged in federal court and ultimately was upheld by the U.S. Supreme Court.

Because the ID law deals with a state -- not federal -- constitutional issue, the League of Women Voters filed suit in Marion Superior Court in December. A judge dismissed the lawsuit, and the LWV took it to the Appellate Court.

In finding the ID law a violation of the Indiana Constitution, the Appellate Court ruled:

* The law violates the constitution because "it regulates voters in a manner that is not uniform and impartial."

* The Legislature has no power to add qualifications for certain voters beyond those in the constitution.

The Indiana Constitution says that anyone who is 18 years old and has been a resident of a precinct for 30 days is eligible to vote. The Legislature added the registration requirement, which affects all.

Opponents of the ID law said it would keep some poor, elderly or minority people from voting.

The ID law was enacted in part because of absentee ballot fraud in Lake County and other parts of the state.

The LWV argued, and the Appellate Court agreed, that those voting by mail don't have to produce a photo ID, and thus, the law isn't uniform.

Although the ID law hasn't affected that many Hoosiers, having one potential voter disenfranchised is one too many.

WASHINGTON — Justice Sonia Sotomayor, who grew up in the Bronx and is a longtime New York Yankees fan, will throw out the first pitch Saturday before their game against the Boston Red Sox.

Sotomayor, 55, will not be the first Supreme Court justice to throw a ceremonial pitch but she will be the first one who previously was dubbed "the judge who saved baseball." * * *

For weeks she has known about the first-pitch honor and has been practicing for her moment at the start of Saturday's game between the two fierce rivals. Born of Puerto Rican parents, she grew up in a housing project not far from Yankee Stadium.

The Yankees chose Sotomayor for the honor as part of Hispanic Heritage Month. The team selected Panama President Ricardo Martinelli to throw the first ball in the Friday game against the Red Sox. "Having Justice Sotomayor, a South Bronx native, participate in our yearly Hispanic Heritage celebration is very exciting, as she is an inspiration to so many," Manuel Garcia, Yankees director of Latino Affairs, said in a prepared statement. "We are proud to welcome her and President Martinelli to our new home."

Other justices have been tapped over the years for first-pitch honors. Samuel Alito, who joined the court in January 2006 and is a die-hard Philadelphia Phillies fan, threw out a first pitch at a Phillies game in summer 2006. A year earlier, Justice John Paul Stevens, a Chicago native who has been on the court since 1975, fired the first pitch at a Cubs game.

The ILB has had a number of entries now on wind turbines, their impact, and local regulation. Today Bill McCleery reports in the Indianapolis Star:

GREENFIELD -- Windmills might be making a comeback in Hancock County as a handful of residents show interest in alternative forms of energy.

County officials say at least three people have expressed interest in recent months in putting wind turbines on their property.

However, officials also are weighing evidence about the drawbacks of wind power -- including possible ill health effects.

Several residents have appeared before the Hancock County Board of Zoning Appeals in recent months seeking special variances allowing them to erect wind turbines on their properties.

Greenfield area resident Mark Wisehart's application for such a variance will be heard at Thursday's zoning meeting at 6:30 p.m. at the Courthouse Annex, 111 American Legion Place, Greenfield. * * *

Wisehart wants to install up to two 55-foot wind turbines on his property along Hancock County Road 400 East, north of County Road 900 North, to provide electrical power for his home, about 2 miles east of the rural community of Eden.

Zoning officials have not decided a firm direction on wind turbines, said Mike Dale, Hancock County's planning chief, because experts continue to disagree over their benefits and drawbacks.

In months past, Dale said, officials considered whether to ease restrictions for such structures because of the belief they offer an environmental benefit by generating electricity with less pollution than through the burning of fossil fuels.

Before enacting any such measures, however, they learned that wind turbines in some cases might have negative effects on human health -- especially in cases of large industrial wind turbines -- and might fail to provide as much of an environmental benefit as had been hoped.

Residents living near giant turbines grouped together in "wind farms" have reported nausea, headaches,insomnia and other symptoms that may result from the low-frequency vibrations produced by the turning windmill blades. The condition has been called "wind turbine syndrome."

"I think the jury is still out," Dale said.

Robert Miller, 60, had considered putting a wind turbine on his property northeast of Greenfield. The zoning board granted him approval with some conditions, but Miller decided not to proceed.

"There are a couple problems with the wind-turbine idea in Indiana today," Miller said. "Number one is: The amount of money you can recoup out of these things just isn't worth it to put it up."

People installing wind turbines receive certain federal and state tax credits offsetting their costs, Miller said, but he added that Indiana's tax credits are smaller than those in other states.

Environment - "Big Polluters Told to Report Emissions "

The Environmental Protection Agency said on Tuesday that it would require the nation’s biggest emitters of greenhouse gases to start tracking their emission levels on Jan. 1 and report them to the government.

The E.P.A. said the reporting would cover roughly 85 percent of the greenhouse-gas emissions in the United States linked to global warming.

The new rules would require 10,000 industrial sites and suppliers of petroleum products to submit the data beginning in 2011. Suppliers of fossil fuels will be asked to estimate how much carbon dioxide, methane and other greenhouse gases are emitted when the fuels are burned by businesses and consumers in buildings and cars, the agency said.

The E.P.A. said it had no firm estimate on how many businesses had the training and systems in place to report on their emissions.

But a large percentage of those covered by the new regulations are already required to report emissions under other programs sponsored by the agency, it said. The agency said it had also been reaching out to businesses and offering training in how the emissions can be measured.

The E.P.A. said the reporting system would provide vital data to businesses seeking to compare and control their emissions and better information to the government, which has been trying to forge a policy on how to combat climate change since President Obama took office.

“The American public, and industry itself, will finally gain critically important knowledge and with this information we can determine how best to reduce those emissions,” Lisa P. Jackson, the agency’s administrator, said in a statement.

Yet the rules, proposed last March, remain controversial.

Many businesses have asserted that the reporting requirement is a first step toward burdensome and needless government regulation.

A Marion Superior Court ruling has allowed a taxpayers' lawsuit to proceed in a challenge of the sale of Pan Am Plaza in Downtown Indianapolis.

The plaintiffs contend Indiana Sports Corp. should have paid $6 million to the city when it sold the lot in April 2008 to a developer, based on a 1985 redevelopment agreement requiring the agency to maintain the plaza as an outdoor, public space.
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In December 2007, the city's Metropolitan Development Commission amended the 1985 agreement to authorize private redevelopment and reduce the amount of space that must be set aside for the public to 10,000 square feet.

Judge Heather Welch on Monday allowed the suit to proceed by denying a motion by the city and the Sports Corp. for a judgment on the pleadings. The ruling says the plaintiffs have standing to sue and says disputes of material facts exist on multiple issues.

Ind. Courts - More on "Clark Circuit Court to hold night sessions"

Updating this ILB entry from Sept. 12th, Braden Lammers has a story in the Jeffersonville News & Tribune headlined "Tuesdays with Moore-y: Clark County Circuit Court starts pilot night program." Some quotes:

Clark County Circuit Court Judge Daniel Moore will be working late on Tuesdays, at least until the end of the year.

Moore began his Night Court program Tuesday, aimed at addressing issues of increased demands for court time, providing additional options to people who cannot leave work during the day and increasing the access for court cases to be heard.

“I think this is consistent with the theme of changes in the court system,” Moore said. “This is also consistent with my thoughts that the judicial system should be more available to the needs of litigants.”

Those involved in litigation will have the option of having hearings between 5 p.m. and 7:30 p.m. on Tuesday evenings. The majority of the proceedings will be initial hearings, motions and discovery disputes, with criminal cases being heard first.

Other cases that will be heard are agreed orders, family cases, estate matters and probationary compliance hearings. * * *

“We envision having initial hearings here, we envision doing some misdemeanor pleas here to free up some of the afternoon court for some of the contested cases that take longer,” said Dawn Elston, deputy prosecuting attorney for Clark County. “We’ll just have to see if we have enough [cases] to keep the docket busy at night.”

One of the cases keeping the court busy Tuesday was Patrick Price’s, who was appearing for a petition to revoke probation, of which he was absolved.

Price said he was not given the choice as to when he was asked to appear, but was happy about having his case heard later in the day, as he was coming from out of town.

“If I had to pick early morning or at night, I would’ve definitely taken the night,” he said.

Ind. Courts - "State raising the bar on taped interrogations: Recently adopted rule is among the most stringent in the U.S."

As noted in this ILBentry yesterday, the Supreme Court's amendment adding a new Section 617 to the Rules of Evidence doesn't take effect January 1, 2011.

Today Jon Murray of the Indianapolis Starreports in a long and comprehensive story:

Indiana's rules for recording police interrogations will rank among the nation's most stringent under a new mandate that requires police to videotape most statements made by felony suspects.

The new evidence rule, ordered by the Indiana Supreme Court last week, will require some agencies to buy equipment. Some say the new rule goes too far, but, in general, police, prosecutors, criminologists and defense attorneys think that recording statements promotes justice.

"The clearer the evidence, the more transparent the interrogation, the closer we are to the truth," said Marion County Prosecutor Carl Brizzi, who supports video recording.

The recordings will capture confessions and incriminating contradictory statements, as well as displays of demeanor under duress that might spark sympathy -- and all will play out routinely for jurors, in living color.

With some exceptions, the new rule -- which applies to interrogations beginning Jan. 1, 2011 -- prohibits the use in court of an interview of a felony suspect in police custody at a jail or police station unless video was recorded, from start to finish.

Indiana's justices went beyond rules set out by the 15 other states that already require recordings of some or all interrogations, according to a review by The Indianapolis Star. All of them generally let police choose between audio and video recordings, though some require more than just felony suspects to be recorded.

The scope of the Indiana court's action caught many by surprise -- including two of the five justices, who voted against it.

"We're going to make sure this works as best as we can," said Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council. "But it's not going to be easy to implement."

Johnson thinks the rules go too far. Smaller police and sheriff's departments among the hundreds in Indiana might face large up-front investments to equip interrogation rooms for video recording, he said -- though the court's order notes the technology is being used more and more in far-flung places as the cost goes down. * * *

Most recording rules elsewhere came from legislatures, but similar efforts have stalled in the Indiana General Assembly. The Indiana Supreme Court's mandate didn't come through a ruling on an appeal but rather through its authority to set rules for the operation of state courts, including those governing evidence.

From a side-bar to the story:

Indiana will join 15 states and the District of Columbia in requiring electronic recordings of police interrogations of in-custody suspects in different cases, either through laws, state supreme court rulings or interpretations of rulings. In 2003, Illinois' Legislature passed the first state law mandating audio or video recording of homicide interrogations, sponsored by then-state Sen. Barack Obama. Nine other states since have passed laws, with some expanding interrogations to major felonies, all felonies or all crimes.

» By law: District of Columbia, Illinois, Maine, Maryland, Missouri, Montana, Nebraska, New Mexico, North Carolina, Oregon and Wisconsin.

» By court ruling: Alaska, Massachusetts, Minnesota and New Jersey. Iowa's Supreme Court encouraged recordings, and the Iowa attorney general has interpreted the ruling as a mandate.

Tuesday, September 22, 2009

That's the headline to this long story by Thomas Claburn in Information Week that begins:

A bank's effort to prevent the disclosure of information about a data breach arising from an errant Gmail message has been rejected by a federal judge in San Jose, California.

On Friday, Judge Ronald M. Whyte of the United States District Court for the Northern District of California, acting on behalf of another judge, denied a motion by the Wyoming-based Rocky Mountain Bank to seal its lawsuit against Google.

"An attempt by a bank to shield information about an unauthorized disclosure of confidential customer information until it can determine whether or not that information has been further disclosed and/or misused does not constitute a compelling reason that overrides the public's common law right of access to court filings," the judge said in his ruling.

The lawsuit seeks to force Google to reveal information about a Gmail account holder who received a misdirected e-mail sent by a bank employee.

Ind. Decisions - Following up on: "Apparently there are all sorts of surprises in the special session budget"; my plan

The ILB has posted a number of entries on this year's budget bill and its surprises: items added into the budget bill at the last minute by those intending to address particular issues.

I hesitate to call this practice "logrolling" -- here are some definitions from a paper I wrote in 2001:

Legislative logrolling involves combining together into one bill several unrelated proposals, in order to accumulate the requisite number of votes for the combined measure to pass. This practice may occur during the initial drafting of the bill, or at any point after introduction. A subset of logrolling involves the addition of an unrelated rider to an essential piece of legislation, such as a budget or appropriations bill, generally in the last days of a legislative session, so that it may “ride” to approval.

A Minnesota Law Review article in 1958 set out these distinctions:

The primary and universally recognized purpose of the one-subject rule is to prevent log-rolling in the enactment of laws — the practice of several minorities combining their several proposals as different provisions of a single bill and thus consolidating their votes so that a majority is obtained for the omnibus bill where perhaps no single proposal of each minority could have obtained majority approval separately.

Another stated purpose of the provision is to prevent “riders” from being attached to bills that are popular and so certain of adoption that the rider will secure adoption not on its own merits, but on the merits of the measure to which it is attached. This stratagem seems to be but a variation of log-rolling

Most of this year's "surprises" appear to have been inserted into the budget bill at the last minute of the final day, June 31st, making this less like a compromise "to accumulate the requisite number of votes for the combined measure to pass" (since many members were not aware of one or another insertion), and more like language secreted into the bill so that the new provisions would "ride to approval."

HEA 1001ss is, after all, 511 pages long, and no one saw it in the more-easily-managed HEA (enrolled act) form on the 31st, they were voting instead on a conference committee report that, as finally agreed upon by the four conferees, looked more like this.

I served as legal counsel to the state budget agency for a number of years in the 1970s and 80s and saw a lot of budget bills. Compared to today, budget bills back then were pretty straight-forward -- there was a general budget bill and a construction budget bill.

It is my theory that as the years have passed, each biennium's budget bill has topped the last in the move from "budget" bill to omnibus catch-all bill. This has accelerated in the 21st century. My plan is to look at a number of budget bills and trace their evolution over the years to illustrate that my theory is correct.

Then I hope to key in our Supreme Court's opinions to this time-line leading to where we are today ...

The video tape shows King as the first officer to arrive to the scene. He jumps out of his vehicle and starts to strike Katlum. Katlum is already on the ground and has his arms spread out in the surrender position.

You can also see King point his taser at the passenger in the car.

South Bend Police Chief Darryl Boykins recommended 30 days without pay and a demotion for Corporal Jason King. In May King agreed to the discipline. Monday a grand jury decided not to indict King on any criminal charges.

Although a grand jury decided not to indict king on any criminal charges the SBPD still stands by the decision.

The Chief says King used unnecessary force in the incident and falsified a police report by writing up a different version of what of happened.

“We still believe there was erroneous information depicted on the report and that it is and was a departmental violation. And overall the amount of force used is still believed to be excessive,” says South Bend Police Department spokesperson Captain Phil Trent.

Officials with the Family and Social Services Administration were given a 90 days to meet with IBM and the other companies that have taken over welfare intake in 59 of Indiana's 92 counties and handle about one-third of the state's 1.2 million-person caseload, 6 News' Norman Cox reported. * * *

Even some of Gov. Mitch Daniels' own Republican legislators said putting caseworkers back with recipients has to happen.

Evansville Sen. Vaneta Becker said administrators have trouble relating to older and disabled recipients who can't deal with computers and being put on hold for literally hours.

FSSA officials said they will require the private vendors to get things done in a timelier manner and keep better track of records. But they refused to offer any specifics about what changes would be made.

"Well, I think it's important to say there is no set what's going to happen yet. What is important to us is the results," said FSSA spokesman Marcus Barlow.

Daniels said the contract with IBM probably won't be canceled, but said the state won't tolerate poor service. * * *

One of the reasons the state switched to the modernized system was so that all recipients' records could be scanned into the system and accessed by anyone at the call center. But Becker said she was told that the records are just sitting in a warehouse because IBM said it was too expensive to scan them all.

Ind. Decisions - Court of Appeals issues 0 today (and 10 NFP)

For publication opinions today (0):

NFP civil opinions today (4):

Francean (Moad) Bohm v. Anderson Woods, Inc., and Liberty Mutual Ins. Co. (NFP) - This is a per se appeal of a Worker's Compensation denial. "The argument section of an appellant’s brief “must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on. . . .” Ind. Appellate Rule 46(A)(8)(a). We will not consider an appellant’s claims when she fails to present cogent arguments supported by authority as required by the rules. * * *

"Here, the argument section of Bohm’s brief is devoid of citation to authority as required by the appellate rules. Furthermore, Bohm fails to make any colorable showing of alleged error. Accordingly, Bohm’s failure to develop cogent argument waives the issues she raises on appeal. Notwithstanding that waiver, we find that Bohm has failed to make a showing of error. The decision of the Board is summarily affirmed."

Bruce Farlow, et al v. Calvin Ralston, et al (NFP) - "A tax deed creates a presumption that a tax sale and all of the steps leading to the issuance of the tax deed were properly executed. Nieto v. Kezy, 846 N.E.2d 327, 337 (Ind. Ct. App. 2006). Subject to restrictions imposed by Indiana Code § 6-1.1-24-11(b), which we need not discuss here, this presumption may be rebutted by affirmative evidence to the contrary. Id. The Ralstons' chain of title to Lot 28 of Thayer's Addition can be clearly traced back to a tax sale in 1967 and a subsequent tax deed in 1971. We have determined that the Farlows have no interest in this property, and they cannot, therefore, challenge the presumption of validity of the Ralstons' title. We cannot say that the trial court erred in granting summary judgment in favor of the Ralstons."

Term. of Parent-Child Rel. of O.A.; T.A. v. IDCS (NFP) - "Father cites to no authority to support his position. Thus, this argument is waived. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”), trans. denied. Waiver notwithstanding, we find no error in terminating Father’s parental rights. Hence, we cannot say that the trial court erred in allowing Mother to terminate her parental rights."

Courts - "Astor Trial (Finally!) Heads to the Jury"

The criminal trial of Brooke Astor’s son, Anthony Marshall, and lawyer Francis Morrissey, is expected to get sent to the jury on Tuesday after 19 weeks of courtroom testimony and lawyer talk. That’s right, 19 weeks of talk over whether Marshall and Morrissey essentially swindled Astor out of millions during the waning days of her life. Astor died in 2007 at the age of 105.

The entry references the NY Times report by John Eligon published Sept. 21st and headed "After 19 Weeks, Astor Case Is About to Go to the Jury ," which gives a good summation of the trial issues.

Ind. Gov't. - "DC's Real-Time Data Program Wins Award"

The District of Columbia's real-time city data program and a water measurement system developed by the Idaho Department of Water Resources and the University of Idaho were among the six winners of the Innovations in American Government awards announced Monday by the Harvard Kennedy School's Ash Institute for Democratic Governance and Innovation.

The District's is the first government initiative in the country to make real-time, raw government data available to citizens online, according to the Ash Institute.

The District's Citywide Data Warehouse (CityDW) holds raw data from multiple government agencies, which is distributed over 320 data feeds to various websites, including the Digital Public Square and D.C. Data Catalogue, and sites created by residents. City officials say the program has reduced staff workloads since they get fewer information requests. The city also held a contest last year for software developers to create applications using the data, getting 47 entries and avoiding $2.6 million in software development costs. * * *

The awards are meant to highlight creativity in the public sector and government projects that are novel, politically strategic, measurably effective and transferable to other locations.

This is where, in my opinion, Indiana needs to go. I linked to a law journal article a while back also making this point, but am still trying to relocate it.

Marcia Coyle reports today in The National Law Journal - some quotes from the lengthy story:

The challenger's ad in the 2008 race for a judgeship on the Wisconsin Supreme Court delivered the classic one-two punch:

Side-by-side, black-and-white head shots of two black men -- one, the first African-American to sit on the state high court; the other, a twice-convicted rapist. With eerie music in the background and the head shots fading in and out, the television narrator said, "Louis Butler worked to put criminals on the street. Like Reuben Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child."

The ad's sponsor, Michael Gableman, unseated Butler in the election. But now, more than a year later, he could lose his seat because of that ad.

Was the ad true or false? Did the First Amendment protect it?

A state court panel recently heard arguments on those questions from Gableman's lawyers and the Wisconsin Judicial Commission, which has charged the justice with lying and violating the so-called misrepresentations clause in the state's judicial code of ethics.

Many state ethics codes and laws have such clauses, which restrict false and misleading statements about an opponent's background and qualifications. As state judicial elections become nastier, more expensive and more important to special interest groups, complaints regarding alleged misrepresentations are on the rise, according to a number of election scholars and litigators. State courts, often faced with resolving such complaints, struggle to define when a candidate has crossed the line between protected and unprotected speech in campaign ads and literature.

The Gableman case is being watched closely for where the Wisconsin Supreme Court ultimately will draw the line.

And in the shadows of the tug-of-war over the ad's truthfulness is a potential U.S. Supreme Court challenge if Gableman loses -- a challenge raising the question of just how different judicial elections are or should be from other elections.

"There's ongoing discomfort with judicial elections, so there's a desire to make them better elections, less tainted by self-interest," said Richard Briffault of Columbia Law School. "But there's another view that, if you're going to have a judicial election, it should be run like any election -- open, freewheeling. Courts are trying to work out this tension."

From later in the story:

Gableman's counsel, James Bopp Jr. of Bopp, Coleson & Bostrom in Terre Haute, Ind., said the commission has admitted that three of the four sentences in the ad are true. The only one contested, he said, is that Butler worked to put criminals on the street.

"Certainly a criminal defense lawyer may not like to be talked about in that way, but that's the end result when they are successful," he said.

Because there is no statement of fact regarding Butler that is "objectively false," Gableman cannot be punished under the rule, argued Bopp. Neither the state rule nor the First Amendment, he added, "allows the government to punish political speech on the ground that it contains an allegedly false implication."

Ind. Decisions - Still more on the COA voter ID decision

Although this newspaper strongly supports Indiana's voter identification law, we find ourselves in agreement with the League of Women Voters that the requirements contain a procedural flaw.

That does not mean the requirement for voters to provide an official photo identification should be discarded; rather, the Indiana Legislature needs to fix it.

Even though the U.S. Supreme Court previously upheld the Indiana requirements under federal law, the Indiana Court of Appeals ruled last week on the appeal of the League of Women Voters that the law violates the state constitution in that it does not impose the same requirements on all Indiana voters.

It is difficult to argue with that position. * * *

It is interesting to note that in the modern history of Indiana voting, it is mail-in absentee ballots that seem to have been the most susceptible to attempts at fraud, while there have been relatively few problems with fraud at the polls. That is particularly true in Vanderburgh County.

Regardless, it appears to be a clear case of applying different rules to three different groups of voters.

Granted, it would be more inconvenient than under current law to require mail-in voters to provide photo identification. And it may be difficult to achieve, considering that the law was passed when Republicans controlled the legislature, and now, Democrats hold the Indiana House of Representatives.

However, the principle behind Indiana's voter identification law — considered the nation's strictest — is to prevent voter fraud. The pass given to absentee voters is a loophole we failed to recognize when the law was first approved. * * *

This strikes us as a clear constitutional conflict, allowing two groups to vote without the photo identification, while requiring another to produce the identification.

It is understandable that the state, through Indiana Attorney General Greg Zoeller, will appeal the decision. A quick decision would be helpful to avoid confusion in the 2010 election. Regardless, the Indiana Legislature should take steps at the first opportunity to correct the flaw.

From the Fort Wayne Journal Gazette, an opinion piece by editorial page editor Tracy Warner, including some observations on the ruling and the governor's reaction. A quote:

The governor’s disrespect for the judges will likely be long remembered.

In the meantime, even if one agrees with the concept of the tough voter ID law, it appears the legislature muffed the language and will have to adopt a new version.

A former Perry Township teacher accused of twice striking a disabled student asked a judge Monday to dismiss his felony battery charges.

Thomas E. Cripe's attorneys cited Indiana's corporal punishment protections for educators, spelled out in laws and court rulings dating to the 19th century that give teachers some leeway as long as it isn't excessive or cruel.

But a prosecutor said comparisons to previous cases missed the point: Cripe's student was a 20-year-old man with autism and severe mental retardation. * * *

Judge Marc Rothenberg said he would rule on the motion to dismiss charges by Sept. 29. If he denies the motion, Cripe will stand trial Oct. 7.

Cripe, 65, is now retired and plans to let his teaching license lapse, his attorneys said.

His 17-year career ended after accusations of two incidents days apart in August 2008 at RISE Learning Center, 5391 Shelby St. The school serves special-education students from Southside districts in pre-kindergarten through high school.

Prosecutors charged Cripe with two counts of battery, a Class D felony, each based on accusations that he struck the face of student Brent Mobley. The first incident took place during a diaper change in a bathroom, the second at a classroom table.

Both times, Cripe's attorneys said, Mobley was unruly and struck the teacher first, and he responded with a light touch after verbal commands failed.

"Those two incidents do not rise to the level of a crime," defense attorney Andrew Duncan said. "It is our contention that Mr. Cripe was trying to restore order to a classroom where there was a disruptive student."

Perry Township Schools officials have said striking a student is never acceptable.

Many districts put such prohibitions into policy, but the Indiana Court of Appeals affirmed last year that teachers have some criminal immunity. A panel upheld the dismissal of a misdemeanor battery case against a Beech Grove High School physical education teacher accused of slapping a student.

My colleagues cite three cases as authority for upholding the trial court’s action. All three date from the 19th century. The world has changed greatly since that time, and standards of student discipline have also changed greatly.

A motion for rehearing was denied 6/10/08; the opinion was certified 7/25/08.

Law - "Keep Your Resume Honest"

That is the advice in this article today from Deborah Ben-Canaan and Martha Fay Africa of The Recorder. Some quotes:

In the age of e-resumes and data systems that store millions upon millions of historical documents, recruiters and employers now have the ability to look longitudinally at information in resumes provided by candidates over many years and map the "content drift" of this information. This provides an entirely new way of determining a candidate's veracity when it comes to his or her employment history.

Inflating, changing, modifying or skewing facts so that they are not 100 percent accurate for the purpose of securing employment is not ethical. If anything, it causes the majority of recruiters and employers to back away from that candidate in order to find someone who presents himself or herself honestly and objectively. * * *

Over the years, our experience has led us to the same unfortunate conclusion -- there are far too many occurrences of resume falsification. Some recent examples include:

• A candidate whose resume was exemplary; she was charming, professional and ultimately was a finalist for a general counsel position. A review of her resumes from earlier years, however, turned up several inconsistencies: a) different law firms showed up on different versions; b) employment years were changed; and c) the candidate had actually passed the California Bar much later than reflected in her resume. The candidate was pulled from the finalist spot.

• A candidate with stellar credentials was looking for an in-house position. He added a year onto his law firm experience, but neglected to mention that one of those years was spent as a summer clerk, and not as an associate. Additionally, the candidate indicated that he had two jobs at the same time, and upon further probing, it came out that he was only an intern in one of the positions.

INDIANAPOLIS -- Two mentally disabled men placed indefinitely in an Indiana state hospital until they might become competent to stand trial on child-molestation charges want to be released to group homes or other community-based care, but the state contends the men are too dangerous for such settings.

The American Civil Liberties Union of Indiana argues in a lawsuit that Steven Thomas and Derrick Dausman may never be ready for trial and they would be better served in community care than in Logansport State Hospital. But, the ACLU says, the state Family and Social Services Administration doesn't offer alternative placement for criminal defendants.

The Family and Social Services Administration and the state attorney general's office argue that a restricted setting is the best place to care for potentially dangerous patients, and deciding placement is within its prerogative as a state agency. * * *

According to court records, [Steven] Thomas has the emotional and cognitive skills of a 5- or 6-year-old. [Derrick] Dausman has an IQ in the low to mid-50s and is regarded as mildly retarded.

Judges in both cases found the men had insufficient comprehension to stand trial and committed them to the FSSA's Division of Mental Health and Addiction, which placed them in the state hospital about 68 miles north of Indianapolis in 2008.

Both men were assigned teams of doctors and social workers whose goal was to raise the men's mental comprehension to the point where they could stand trial.

The FSSA said in a court brief that the doctors who treat the men say both are progressing toward competency. But two psychiatrists cited by the ACLU were skeptical that either would ever be competent to stand trial.

That, the ACLU argued, amounts to a lifetime commitment in the state hospital.

"One of the great dangers is people deemed unfit to stand trial ... can be literally institutionalized for the rest of their life," said John Dickerson, executive director of the advocacy group Arc of Indiana, which is not a party in the lawsuit.

FSSA's policy keeps it from placing anyone facing criminal charges anywhere but in a state hospital. The ACLU claimed that goes against state law requiring care in the least restrictive setting available and violates the men's federal constitutional right to due process. But a Marion County judge ruled in favor of FSSA, and the ACLU appealed.

The attorney general's office, which represents FSSA, argues that the social services agency is simply using its discretion and operating within the constraints of its budget. But its chief argument is public safety. * * *

ACLU attorney Gavin Rose said the decision on whether Thomas and Dausman pose a threat should be up to medical professionals. "The people who do that right now are lawyers," he said.

He noted that two doctors -- one court-appointed, the other the Division of Mental Health's own medical director -- thought Thomas and Dausman belonged in community care.

Courts - More on: Sotomayor not yet decided on cert pool

Updating this ILB entry from July 16th, Tony Mauro has another article on the practice today in The Blog of Legal Times. This one is headed "Sotomayor Joins It, Lawyers Attack It." A quote:

"The theory of the pool is that it is never wrong to deny [a petition] because the issue will come up again," said Roy Englert of Robbins, Russell, Englert, Orseck, Untereiner & Sauber. As a result, Englert said, important cases that merit review are "falling through the cracks ... The pool is not serving the Court very well." He cited research by University of Minnesota professor David Stras -- who also spoke at the conference -- showing that there is a strong correlation between the recommendations of pool clerks and whether the Court grants or denies a case.

Sidley Austin's Carter Phillips concurred, acknowledging frustration with the fact that because of the pool, many of the petitions he writes are not read by any justice -- a truth that is difficult to explain to a paying client after the petition has been denied. "I am writing petitions for people the age of my daughter," Phillips said -- a comment that had some literal truth for him. Phillips' daughter Jessica clerked for Justice Alito two terms ago (but was recused in any cases involving Sidley Austin).

Former solicitor general Seth Waxman also weighed in, freely acknowledging that "almost all the cases I get paid to file are denied." The partner at Wilmer Cutler Pickering Hale & Dorr agreed that clerks have little incentive to recommend that the Court grant review. "The only way a clerk can become truly notorious," Waxman said, is to recommend review in a case that the justices later dismiss because it has a procedural flaw or other defect.

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

Peter and Lori Cook, as parents and next friends of Lindsey Jo Cook, filed a products liability lawsuit against Ford Motor Company following a motor vehicle accident in which eight-year-old Lindsey suffered serious brain injuries when the airbag in the Cooks' 1997 Ford F-150 pickup truck deployed and struck her in the head. The Cooks alleged that Lindsey's injuries were caused in part by Ford's defective instruction and warnings with respect to the front passenger seat airbag and airbag deactivation switch.

The trial court granted summary judgment to Ford on the Cooks' failure to warn claim, and the Cooks appeal, raising several issues that we restate as three: 1) whether the Cooks' failure to warn claim is preempted; 2) if not, whether a genuine issue of material fact exists regarding Ford's breach of its duty to warn; and 3) whether a genuine issue of material fact exists regarding Ford's breach being a proximate cause of Lindsey's injury. Ford cross-appeals the trial court's denial of its motion for fees and costs filed after a mistrial was declared, raising the issue of whether the trial court abused its discretion in failing to find the Cooks in contempt.

Concluding the Cooks' claim is not preempted by federal regulation and there is a genuine issue of material fact as to whether Ford breached its duty to warn and whether Ford was the proximate cause of Lindsey's injury, we reverse the trial court's grant of summary judgment to Ford on the Cooks' failure to warn claim and remand for further proceedings. Further concluding Ford was not entitled to fees and costs incurred during the first trial, we affirm the trial court's denial of Ford's motion for reimbursement. * * *

[Re the issue of "failure to warn" and preemption, the court concludes, beginning at p. 16] Finally, in Wyeth v. Levine, 129 S. Ct. 1187 (2009), the Court held that a state law claim of failure to warn of a specific risk associated with a prescription drug was not preempted. The plaintiff had received an injection of a drug via a method that resulted in gangrene and amputation of her arm. The drug and its warning label had been approved by the FDA pursuant to the FDCA. The plaintiff argued that the manufacturer should have strengthened the approved warning to warn of the risks of administering the drug by that method. The manufacturer argued that it would have been impossible to comply with the state law duty sought to be imposed by the plaintiff to modify the drug warning label and also with its federal labeling duties. The Court held that because a regulation allows a manufacturer to change an approved label to add or strengthen a warning immediately upon filing a supplemental application for the change and without waiting for FDA approval, the manufacturer failed to prove the “demanding defense” of impossibility preemption. The manufacturer also argued that requiring it to comply with a state law duty to provide a stronger warning would obstruct the purposes and objectives of federal drug labeling regulation. The manufacturer argued that the FDCA “establishes both a floor and ceiling . . .: [o]nce the FDA has approved a drug's label, a state-law verdict may not deem the label inadequate . . . .” Id. However, the absence of an express preemption provision in the FDCA for prescription drugs “is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.” The FDA's declaration in the preamble to a 2006 regulation governing the content and format of drug labels that the FDCA establishes a floor and a ceiling and that state law failure to warn claims threaten the FDA's statutorily prescribed role as the “expert Federal agency responsible for evaluating and regulating drugs,” did not merit deference because it was not offered for comment before being finalized, because it was at odds with evidence of Congress' purpose, and because it reversed the FDA's longstanding position that federal labeling standards were a floor only. * * *

[At p. 20] For many of the same reasons Wyeth found no preemption and for several additional reasons as outlined above, we hold that the duty the Cooks seek to impose neither actually conflicts with Standard 208 nor stands as an obstacle to the accomplishment and execution of federal objectives regarding airbag warnings. Therefore, preemption was not a basis on which to grant summary judgment to Ford. * * *

[Re adequacy of warnings, at p. 24] In short, Standard 208 allows Ford discretion in crafting a warning and we believe there is at least a question of fact as to whether Ford exercised that discretion in crafting a warning that was strong and specific enough to warn the Cooks that the additional instructions were linked to danger from the airbag. Thus, we hold Ford was not entitled to summary judgment on the issue of breach of its duty to warn.* * *

[Re I - The Cooks' Appeal, at p. 29] Although a jury may very well find for Ford with regard to the breach of its duty to warn or the proximate cause of Lindsey's injury, we cannot say that the designated evidence leads to but a single inference so as to render the issues questions of law, not fact. Ford failed to negate an element of the Cooks' failure to warn claim as a matter of law, and summary judgment was therefore inappropriate. Accordingly, the trial court's grant of summary judgment to Ford on the Cooks' failure to warn claim is reversed and this case is remanded for further proceedings. * * *

[Conclusion, p. 35] The trial court did not abuse its discretion in denying Ford's motion (Issue II) for fees and costs incurred during the first trial of this cause. Standard 208 as it applies to airbag warnings in the owner's manual provides a minimum standard that does not preempt the Cooks' claim that Ford's warnings were inadequate. There is a genuine issue of material fact as to whether Ford breached its duty to warn and whether its breach, if any, was a proximate cause of Lindsey's injury; the trial court's grant of summary judgment is reversed and we remand for further proceedings consistent with this opinion. Affirmed in part; reversed and remanded in part.

CRONE, J., concurs.
BROWN, J., concurs in part and dissents in part with separate opinion. [which begins, at p. 36] I respectfully concur in part and dissent in part. I concur with the majority's analysis and determination of the first issue that the duty the Cooks seek to impose was not in conflict with Standard 208, nor was Standard 208 an obstacle to the accomplishment and execution of federal objectives, and therefore the cause of action was not preempted under the Supremacy Clause of the United States Constitution. As to the second issue, I respectfully dissent.

I agree with the majority that Ford owed the Cooks a duty to warn of the dangers associated with their truck's airbags. I disagree with the majority's conclusion that there exists a genuine issue of material fact that Ford was in breach of that duty.

B.H. and C.H. (―Mother,‖ and together with Father, appeal the trial court’s order determining that A.H. is a child in need of services and the dispositional order following that determination. Parents raise one issue, which we restate as whether sufficient evidence supports the trial court’s determination that A.H. was a CHINS. The Indiana Department of Child Services raises one additional issue, which we restate as whether the trial court abused its discretion by excluding certain evidence relating to adjudications involving the Parents’ other children. We affirm. * * *

Given the evidence and testimony presented at the fact-finding hearing, we cannot say that the trial court’s findings of fact, conclusions of law, and judgment were clearly erroneous. The evidence and findings of fact were sufficient to demonstrate that A.H.’s physical condition was "seriously endangered." See, e.g., Roark, 551 N.E.2d at 869-872 (holding that the evidence presented at a fact-finding hearing was sufficient to support the CHINS finding); Parker v. Monroe County Dep’t of Pub. Welfare, 533 N.E.2d 177, 179 (Ind. Ct. App. 1989) (observing that the court does not have to wait until a tragedy occurs in order to take action and holding that the evidence supported the conclusion that the children were CHINS).
__________
Because we affirm the trial court’s determination that A.H. was a CHINS based upon the evidence admitted at the fact-finding hearing, we need not address the issue raised by DCS whether the trial court abused its discretion in excluding evidence relating to Parents’ prior involvement with DCS and previous CHINS adjudications involving S.H. and C.F.

NFP civil opinions today (1):

Calvin Deloney v. Indiana Department of Correction, et al (NFP) - "Calvin Deloney filed a 42 U.S.C. § 1983 complaint against various correctional authorities. Deloney claimed that his parole revocation proceedings violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. The trial court dismissed the cause pursuant to Indiana Trial Rule 12(B)(6). Because Deloney joined improper defendants, and because his parole revocation has not been reversed or declared invalid, we affirm."

Ind. Law - It's the Law: "Don't burn your leaves "

Ken Kosky's "It's the Law"column in the NWI Times this week examines open burning. Some quotes:

Fire officials say this is the time of year when people violate the law by raking their leaves and burning them.

Officials are reminding residents that open burning is illegal for residents of Lake and Porter counties, and for residents of Clark and Floyd counties in southern Indiana because of unacceptably high ozone levels.

People who violate the open burning rules can be fined, and they can be held liable if their fire gets out of hand and damages other people's property.

Valparaiso Assistant Fire Chief Dan Lamb said firefighters go out and advise violators of the rules and ask them to put their fires out. If they don't, firefighters will call law enforcement.

There are limited exceptions to the open burning statute, such as ceremonies, cooking and bonfires.

Ind. Courts - "County library could be endangered legal resource"

Scott Vaughn hovered near a table covered with two thick law books and a binder full of court filing forms. He was trying to find the paperwork to start child custody proceedings. His deadline to file was approaching.

Next to him, librarian Zoya Golban flipped through the books to locate a reference that helped her find the proper form. She explained to Vaughn that he was a petitioner and pulled the paperwork to copy.

Similar interactions play out dozens of times a day at the Marion County Law Library. Located on the third floor of the City-County Building, it is one of the few places where litigants who represent themselves in civil court -- because they can't afford a lawyer -- can find guidance navigating the complex court system.

But it's a public service that may soon go away. Budget cuts could close the law library by the end of this year.

Court administrators say they've pared their costs so much that keeping the library open would force other court staff reductions or program cuts. The City-County Council is scheduled to vote on the city budget tonight.

It would cost $280,800 next year to run the library, which is smaller than many elementary school libraries and is manned mostly by Golban, who tracked more than 8,000 library users last year.

That estimate is low, she figures, because sometimes she gets so busy assisting people she fails to count how many come through. Although she can't dispense legal advice, Golban fields questions about filing paperwork, points out books that can be used as legal references and guides people through online resources.

Proponents of closing the library say its service is becoming less relevant in an Internet age and when access to other libraries is available.

However, to visitors such as Indianapolis resident Travis Bailey, who used the library last week, the implications of eliminating the service are clear.

Even with more online access, though, court processes are complicated, particularly for some of the self-represented (also called pro se) litigants. Court systems across the country are recognizing that having a guide such as Golban is crucial.

Ind. Gov't. - More on: AP story features new public access counselor

Updating this ILB entry from yesterday, the Star, which ran the AP story today, includes this sidebar headed "Test your knowledge on state access laws." Worth a look. Source is: Handbook on Indiana's Public Access Laws, available along with a number of other useful resources, such as "public access to death records," "public access to warrants and mug shots," here.

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 9/21/09):

None currently scheduled.

Next week's oral arguments before the Supreme Court (week of 9/28/09):

Next Thursday, October 1st

9:00 AM - Julie Gardiner v. State of Indiana - The Carroll Circuit Court determined that Gardiner's class A felony sentence could not be suspended below the statutory minimum of twenty years because she had a prior unrelated felony conviction. The prior conviction was a class D felony to which Gardiner had pleaded guilty but which had been reduced to a class A misdemeanor by the time of Gardiner's sentencing on the class A felony. The Court of Appeals affirmed the trial court in Gardiner v. State. 903 N.E.2d 552 (Ind. Ct. App. 6/17/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Note: Here is the ILB summary of the 2-1 COA opinion.]

9:45 AM - Shewanda Beattie v. State of Indiana - A jury found Beattie not guilty of dealing in cocaine and possession of cocaine, but found her guilty of possessing cocaine in a family housing complex, and the Vanderburgh Circuit Court sentenced her accordingly. The Court of Appeals reversed on grounds the verdicts were inconsistent, and ordered a new trial on the possession of cocaine in a family housing complex. Beattie v. State, 903 N.E.2d 1050 (Ind. Ct. App. 4/9/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Note: Here is the ILB summary of the COA opinion - 6th case.]

10:30 AM - Robert E. Carter, Jr. v. Nugent Sand Company - Nugent Sand operates a sand and gravel company on a man-made lake near the Ohio River, and constructed a channel providing access for barge traffic from the lake to the river. The Indiana Department of Natural Resources conditioned permits to construct the channel on Nugent Sand's dedicating the water to public use, relying on Indiana Code section 14-29-4-5(2). Nugent Sand sought declaratory and injunctive relief. The Marion Superior Court held that the statute is unconstitutional to the extent it requires dedication to public use without compensation, and granted relief. In this direct appeal following the trial court's declaration that the statute is unconstitutional, the Department argues that Nugent Sand failed timely to appeal, the statute is not unconstitutional, and that the trial court's judgment should be reversed.

This week's oral arguments before the Court of Appeals (week of 9/21/09):

Wednesday, September 23rd

5:00 PM - Thomas v. FSSA - Thomas and Dausman have brought this action for declaratory judgment and injunctive relief, asking that the state mental health institution where they are both held be ordered to place each man in the least restrictive environment appropriate for his continued care and rehabilitation under Indiana statute, claiming that the institution's failure to do so constitutes a violation of each man's rights under Indiana law and the United States Constitution. The State has responded that this action is not ripe for review because less-restrictive placement has not yet been recommended by state mental health authorities and that the state institution is the least restrictive placement option that offers competency restoration services, that the issuance of a declaratory judgment or injunction is impermissible under the separation of powers doctrine contained in the Indiana Constitution and that the State's actions regarding Thomas and Dausman comply with both Indiana law and the United States Constitution. The Marion Superior Court agreed with the State's position and entered summary judgment for the State and against Thomas and Dausman. The Scheduled Panel Members are: Judges Kirsch, Mathias and Riley.
[Where: Wynne Courtroom at IU-Indy Law - WEBCAST (no, doesn't look like it). Note also that this argument is NOT on the COA's official calendar, but IS on the Clerk's docket.]

The ILB is pleased to post the briefs in this case. They are available here.

Next week's oral arguments before the Court of Appeals (week of 9/28/09):

1:30 PM - Dewayne Jones v. Housing Authority of South Bend - Note: The COA calendar currently provides no information other than the case name - I obtained the time of the argument and the panel (Baker, Friedlander and Riley) from the Clerk's docket.

Next Wednesday, September 30th

1:30 PM - Wurster Construction Co., Inc. v. Essex Insurance Co. - The special administrator of the estate of Christian King ("Estate") filed a wrongful death suit against Wurster Construction Co., Inc. ("Wurster") and Kane Construction, Inc. ("Kane") seeking compensation for King's alleged work-related death. Essex Insurance Company ("Essex") insured Kane under a commercial general liability policy, which named Wurster as an additional insured. The claim on the merits involves an action filed by Essex seeking a declaratory judgment on the issues of coverage and duty to defend. Wurster now appeals the trial court's belated grant of Essex's motion to correct error and, citing to Garrison v. Metcalf, 849 N.E.2d 114 (Ind. 2006), contends that the trial court's belated action is a nullity for the reason that it was entered after Essex's motion was "deemed denied" by operation of Indiana Trial Rule 53.3(A). Essex contends that, pursuant to our Supreme Court's reasoning in Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285 (Ind. 2000) and HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 97 (Ind. 2008), it is entitled to assert as cross-error the issue presented in its "deemed denied" motion; i.e., whether the trial court erred by declaring that Essex has no insurance coverage for and no duty to defend Kane and/or Wurster in the law suit filed against them by the Estate.
On cross-appeal, Wurster contends that summary judgment was improperly granted to Essex because there is a genuine issue of material fact as to whether the insurance policy endorsements, which excluded coverage for Kane's independent contractors, and on which the trial court relied to reach its decision, were, in fact, part of the insurance policy. Wurster argues that the endorsements were a unilateral change, and therefore not part of the policy. Essex responds that the endorsements are part of the policy since they were accepted by an insurance agent acting on Kane's behalf.
The Scheduled Panel Members are: Judges Najam, Kirsch and Barnes. [ILB: this summary, as are they all, is from the COA calendar]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

Sunday, September 20, 2009

Ind. Courts - Still more on: "Time might not be on Delaware County Prosecutor Mark McKinney's side"

On Sept. 14th the ILB posted this entry, including a copy of document issued by the Supreme Court and dated June 18th.

On Sept. 17th the Muncie Star-Press published a story by Rick Yencer headed "Supreme Court rejects 90-day suspension for McKinney." The story begins:

A majority of the Indiana Supreme Court has rejected a proposed resolution of a misconduct complaint against Delaware County Prosecutor Mark McKinney that called for him to be suspended from the practice of law for 90 days.

"Specifically, a majority of the court concluded that the agreed discipline, that being suspended from the practice of law for 90 days with automatic reinstatement, is insufficient in light of the misconduct agreed to by the parties," Kevin Smith, Supreme Court administrator, wrote in a June 18 letter to McKinney's attorney, Kevin McGoff, and Donald Lundberg, executive secretary of the Indiana Supreme Court Disciplinary Commission.

The court's position leaves McKinney, expected to seek re-election next year, still searching for a resolution of a complaint verified by the court's disciplinary commission in May, accusing him of conflict of interest and conduct prejudicial to the administration of justice.

The complaint had been filed by Mayor Sharon McShurley in 2008, accusing McKinney of misleading local courts by using confidential settlements to handle drug forfeiture cases, acting as civil attorney for the Muncie-Delaware County Drug Task Force and as deputy and later full-time prosecutor.

Four-term former Delaware County Prosecutor Richard Reed -- the man who hand-picked Mark McKinney to follow in his footsteps -- has some advice for his embattled successor: Resign.

Reed, the longest-serving local prosecutor and one who attracted his fair share of controversy by taking on local government corruption -- often targeting fellow Democrats -- said this week he regrets backing McKinney in the 2006 election and is disappointed by the legal morass into which McKinney has descended. * * *

"I think he should (resign) to save this community from one more black eye," Reed said. "Not just from the prosecutor's office, but from the practice of law."

Environment - "Limits on LA Roosters Get a Green Light"

Supplementing our informative entry from Sept. 15th headed "'Chicken underground' emerges in Indiana", the NY Times published this story Sept. 16th about a draft ordinance to limit roosters in Los Angeles. Rebecca Cathcart reported:

The [Los Angeles City] Council’s Public Safety Committee on Monday passed a draft of the ordinance that would prevent people within city limits from keeping more than one rooster on their properties. Birds with roles in film and television shoots, or starring in educational exhibits like petting zoos, would be exempt with the proper permits, according to the draft. The full Council will vote on the ordinance on Tuesday. An older draft of the legislation was introduced in 2007, but required review by multiple city agencies. In the interim, all have signed off, and lawmakers expect the ban to pass.

“In limiting the number of roosters on any one property,” the draft ordinance states, “the city wishes to balance the desires of individuals to keep roosters with the rights of their neighbors to live in peace and tranquillity.”

The draft ordinance allows people with several roosters to keep up to three as pets, barring complaints from neighbors.

But it seems there is a dark side to this story -- sometimes an LA rooster is more than a pet or a stage and screen star ... The story continues:

But in Los Angeles, said Detective Susan Brumagin, who oversees the Animal Cruelty Division of the Los Angeles Police Department, the desire to keep roosters is rarely rooted in a love of unusual pets.

“That’d be naïve,” Detective Brumagin said.

“These are cockfighting operations,” in which birds shred each other for sport and illegal gambling draws “tens of thousands of dollars,” she said, adding that in two and a half years, she has “investigated 200 cockfighting operations.” In addition to noise, filth and violence, she said, “often prostitution is going on, and narcotics are sold” at fights in neighborhoods where local gangs get a cut of the profits.

While big cockfighting operations — some with “about 900 birds,” Detective Brumagin said — exist mostly in the hills and valleys far beyond the city center, “there are yards just east of downtown that have 40, 50 and 60 birds.”

“The cacophony of sounds that emanates from that drives neighbors to complain,” the detective said, “and even to sell their properties and move.”

Ind. Gov't. - AP story features new public access counselor

Updating this ILB entry from Sept. 2nd, Keith Robinson of the AP has this story today about new public access counselor Andrew J. Kossack. A quote from the story:

"A lot of these local government officials -- they want to comply but they just don't know how," he said. "So some very simple yes-and-no kind of directions for them, I think, would go a long way toward keeping complaints out of this office, but more importantly keeping the public satisfied that the laws are being complied with."

He also wants to create online "flow charts," with click-throughs to answer visitors' questions step by step. That, he said, also would help citizens to better understand the laws.

He says he plans to help educate public officials about the laws in speaking engagements. He has two scheduled in the next few weeks, including at a meeting of the Indiana Association of Cities and Towns in French Lick.

The funding of his office could limit such trips. His salary of $73,000 per year and that of an administrative assistant consume nearly two-thirds of the office's $150,000 annual budget.

That was the heading to this story by Chris Quay Sept. 17th in the Louisville Courier Journal. Some quotes:

Indiana Attorney General Greg Zoeller said Thursday that he and the Indiana Department of Environmental Management have signed a consent decree to spur fixes in Jeffersonville’s sewer operation.

The city’s Sanitary Sewer Board agreed to the terms of the decree last month after it was signed by Mayor Tom Galligan, but still needed to be signed by Zoeller before it became official, said Bryan Corbin, an attorney general spokesman.

The Environmental Protection Agency and the U.S. Department of Justice have also agreed to the terms of the decree.

Facing hefty fines over violations of the federal Clean Water Act because of sewer overflows into the Ohio River, the city entered into negotiations with several agencies, including the EPA, to reach a settlement. * * *

The negotiations took about three years, said Larry Thomas, a spokesman for Jeffersonville Mayor Tom Galligan’s office.

“This is the result we expected” with all agencies getting on board with the terms of the decree, Thomas said.

The city was fined about $165,000 — half to be paid to the state and half to the EPA.

According to the attorney general, the penalty paid to the state could be reduced to $8,250 as long as the city agrees to certain environmental projects, such as a rain garden at Preservation Park.

The city has projects planned including construction of a new water treatment facility and improvements to downtown areas that experience recurring overflow problems, Thomas said.

Residents also may see a hike in sewer rates to fund new projects, he said.

Average monthly sewer bills, now about $24, could climb to $45 in a series of phased increases under terms of the decree, but it allows the city to keep rates manageable and gives the city a chance to phase in improvements within a reasonable amount of time.

Thomas said a long-term plan could take 15 to 20 years.

Thanks to AG Zoeller's office, the ILB is able to post a number of the documents that make up this settlement:

[Updated 9/22/09]"Evansville water utility sued by EPA, IDEM," is the headline to a story today in the Evansville Courier & Press reported by Dan Shaw. Some quotes:

Federal and state environmental agencies are suing the City of Evansville over alleged illegal discharges of sewage to the Ohio River and other public waterways.

The suit, filed in the U.S. District Court for the Southern District of Indiana-Evansville Division, threatens to impose stiff fines on the city. * * *

Many of the discharges result from Evansville’s using, in a lot of cases, the same sewers to convey both rainwater and sewage. During storms, such lines can be overwhelmed, causing them to discharge untreated water directly into the river.

Many cities, especially in the Midwest and East, are contending with the same problems. Since 1994, the U.S. Environmental Protection Agency has directed cities throughout the United States to reduce the frequency of such discharges. Evansville officials have said they are working on a plan that will give the city 20 years to prevent sewage from entering the Ohio River.

In a news release, Mayor Jonathan Weinzapfel pledged to fight the charges vigorously.

Not law but important - More on: "A Virtual Revolution Is Brewing for Colleges"

Updating this ILB entry from Sept. 12th, here, from the Sept. 14th Business Week, is a column from Kevin Maney headed "Next: An Internet Revolution in Higher Education - Web technology is poised to shake universities, the way it rocked newspapers and the music industry—with convenient, cheaper alternatives." Some quotes:

The idea of some kind of open-source, online, low-cost revolution in education has become a lit fuse, sparking and crackling its way toward an explosion. Here and there, in places ranging from Silicon Valley to Indonesia, a few bold universities and entrepreneurs are taking pokes at the concept. Start-ups such as StraighterLine and Knewton are offering online courses for college credit for hundreds of dollars, compared with thousands of dollars at most universities. Peer2Peer University is gathering buzz as an online, self-organizing, social networking approach to higher education.

"The economics of traditional schooling are so out of whack that there is an opening for new players," says Fred Fransen, executive director of the Center for Excellence in Higher Education, which helps donors more effectively give money to universities. From that perch, Fransen sees the typical university business model as prone to attack.

The vulnerability sensed by McNealy, Fransen, and others has a lot to do with a concept I've been writing about the past few years—the fidelity swap. In our everyday lives we constantly make trade-offs between fidelity and convenience. Fidelity is the total experience of something. At a rock concert, for instance, it's not just the quality of the sound—which often isn't as good as listening to music on a good stereo—but everything else, too, such as the show's ambience and the bragging rights that come with having seen the band live. Convenience is how easy or hard it is to get what you want. That includes whether it's readily available, whether it's easy to do or use, and how much it costs. If something is less expensive, it's naturally more convenient because it's easier for more people to get it. * * *

College is a high-fidelity experience. If you want a respected undergraduate degree, there is one way to get it: You have to get accepted to an accredited college, pay tuition so great that your degree will be one of the most expensive things you ever buy, and uproot your life to move—all so you can engage in a rich, all-encompassing experience for four years. * * *

For centuries the university model dominated because nothing else worked. No technology existed that might deliver an interactive, engaging educational experience without gathering students and teachers in the same physical space. In the past century, a powerful social bias set in: Only accredited universities were allowed to grant degrees, and most professional jobs required an accredited degree. Even though technologies emerged that might foster new models of higher education, the neat accreditation ecosystem locked out innovative competitors.

These days broadband Internet, video games, social networks, and other developments could combine to create an online, inexpensive, super-convenient model for higher education. You wouldn't get the sights and sounds of a campus, personal contact with professors, or beer-soaked frat parties, but you'd end up with the knowledge you need and the degree to prove it. The University of Phoenix which is accredited by the Higher Learning Commission, is partway there, though it's a hybrid of online and campus learning. Other organizations, entrepreneurs, and governments are trying to develop super-convenient universities—often in places outside the U.S., including Hong Kong, Indonesia, and Canada.

The Harvards of the world won't go away. They will continue to be the high-fidelity players in the fidelity/convenience trade-off. But a large swath of the population might decide that going deeply into debt before even starting work is too high a price to pay for a high-fidelity education when a more convenient version will do. They will pull out of mid-level universities. Just as surely as many consumers gave up music CDs for Internet downloads, many students will soon decide to put aside a four-year stint at a traditional university for a cheap, easy, and good-enough degree delivered through laptop screens and smart phones. Schools in the middle of the pack—neither high-fidelity nor high-convenience—will have to adapt or suffer.

Courts - More on "David Jason Stinson found not guilty in football player’s death"

Jason Stinson’s acquittal won’t be admissible in the Feb. 15 trial of the wrongful death lawsuit that Max Gilpin’s parents filed against the former Pleasure Ridge High School football coach and seven other defendants.

But trial lawyers who aren’t involved in the case say it poses significant problems for Max’s parents because prospective jurors are bound to know that Stinson was exonerated on criminal charges.

“It is all over the press that this guy is innocent,” said Gary Weiss, who represents both plaintiffs and defendants in civil cases.

Unlike the three-week criminal trial, in which prosecutors had to prove Stinson’s guilt beyond a reasonable doubt, lawyers for Max’s parents, Michele Crockett and Jeff Gilpin, will only have to show that is more likely than not that the negligence of Stinson and his co-defendants — other coaches and PRP officials — caused Max’s death from heat stroke on Aug. 23, 2008.

But they must still prove that the defendants’ actions caused Max to die, lawyers say, a proposition that a criminal jury rejected Thursday in finding Stinson not guilty of reckless homicide and wanton endangerment. * * *

In an interview Friday, Crockett, noting the lesser burden of proof in civil cases, said she intended to press on with the lawsuit: “I still feel that what the coaches and others did or did not do that day ultimately contributed to Max’s death.”

Attorney Todd Thompson, who represents Crockett in the civil case, was out of the country, but attorney Mike Cooper, who represents Jeff Gilpin, said in an interview that it is not uncommon for one jury to find a defendant not guilty in a criminal case, while another jury finds the defendant responsible and awards damages.

In Kentucky, for example, Oldfather and another lawyer won a $6.1 million verdict in 2007 for Louise Ogborn in her strip-search case against McDonald’s. A year earlier, a man accused of making the hoax calls that precipitated the search was acquitted on charges of impersonating a police officer.

Most famously, a Los Angeles civil jury returned a $33.5 million judgment against O.J. Simpson in 1997, two years after he was acquitted of the murders of Nicole Simpson and Ronald Goldman.

“Just because they are found not guilty doesn’t mean they are innocent,” Cooper said.

Ind. Law - "Despite laws, 'meth has not gone away'"

That is the headline to this story by Sophia Voravong in today's Lafayette Journal Courier. Some quotes:

After a 2005 Indiana law limited how much cold or allergy medicine containing ephedrine or pseudoephedrine an individual could buy, law enforcement saw a decline in homegrown meth labs.
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Those cold and allergy active ingredients were commonly used to make methamphetamine.

Theft of anhydrous ammonia, another common ingredient for homemade meth, also have dropped as more farmers are locking storage tanks, according to Jerry Holeman, a detective with the Indiana State Police and the Lafayette district's meth suppression officer.

But meth abuse is still a significant concern.

"Like any other law or tactic, people will find a way around it. Meth has not gone away," Holeman said.

"There's smurfing, where people will buy up pills from several different stores.

"And now we're seeing the 'one pot' method, where people are cooking meth and making anhydrous ammonia all at once using Gatorade bottles or pop bottles."

According to the U.S. Department of Justice, Indiana is an active drug transportation and distribution area because of Lake Michigan and seven highway systems that run through the state.

Indiana was one of 16 states recently targeted for an educational campaign by the White House Office of National Drug Control Policy because it ranks second in the country for meth lab seizures and incidents reported to the Drug Enforcement Agency. * * *

According to data provided by Holeman, Indiana had an all-time high of 1,115 meth lab incidents in 2004. That number dropped to 992 in 2005, likely due to Indiana limiting the sale of allergy and cold medicine.

The law, which took effect on July 1, 2005, prohibits individuals from purchasing more than 100 tablets per week. Customers also must provide photo identification and sign a log book.

Reported meth labs continued to fall in Indiana in 2006 and 2007, with 766 and 820 labs, respectively. But the number rose to 1,059 in 2008.

Through May 31, 586 lab incidents have been reported this year.

"What we're seeing homegrown is mostly rural, for instance in White and Carroll counties," Holeman said. "But in Tippecanoe County, what we're finding is most meth is imported."

Lafayette police Lt. Pat Flannelly, coordinator of the Tippecanoe County Drug Task Force, said most meth that detectives see here was produced in Mexico. But he said the prevalence is not significant compared to other narcotics.

"From my personal observations ... overall there has been a decline," Flannelly said. "Do we still keep a watchful eye for it? Absolutely. If we get information on it, we will always follow it up."

Gov. Mitch Daniels had only a few minutes before he met with reporters Thursday in which to digest a briefing on last week’s surprising decision by the Indiana Court of Appeals finding the state’s voter ID law unconstitutional.

And he had just gotten in late the night before from a China-Japan trade mission.

The ruling was the subject of the first question from the press corps, and Daniels let loose on the judges who ruled in the case, especially Judge Patricia Riley, who wrote the opinion.

He noted she has been reversed by the Indiana Supreme Court before and said the ruling “flies in the face” of rulings made by better judges. When asked whether the decision was partisan, he said “transparently so.”

An item on the Indiana Law Blog questioned whether Daniels went too far, possibly breaking rules of professional conduct governing attorneys in Indiana.

Daniels was admitted to the Indiana bar in 1980. He is currently in “inactive” status because he isn’t practicing law, but the rules still apply, according to the attorney discipline commission.

And a reader of the Law Blog pointed out that attorneys aren’t allowed to “recklessly make false claims about a judge’s integrity.”

The Indiana State Bar Association also didn’t appreciate Daniels’ comments, noting in a statement issued Friday that the comments were not helpful in advancing appropriate respect for the courts and the judicial process and in honoring the separation-of-powers doctrine.

“The ISBA respects the governor’s, and every citizen’s, right to disagree with the decision,” the association said. “There are rules, however, that govern judicial conduct and appropriate procedures for dealing with complaints about the judiciary. Comments about individual judges are not the way to express disagreement with any court opinion.”

The Indiana State Bar Association took issue Friday with Gov. Mitch Daniels, who had slammed the Indiana Court of Appeals decision overturning Indiana's voter ID law.

Daniels had called the decision "preposterous," "extreme" and "an act of judicial arrogance."

Asked whether it was partisan, he answered: "Transparently so."

In addition, he said the unanimous decision was written by a judge -- Patricia Riley -- who had been overturned before and would be again in this case, once it goes to the Indiana Supreme Court.

The Indiana State Bar Association found all that a bit much.

It issued a statement Friday saying that while the association "recognizes that Gov. Daniels has championed the cause of judicial independence, the State Bar is nevertheless compelled to emphasize that comments such as those attributed to the governor are not helpful in advancing appropriate respect for the courts and the judicial process, and honoring the separation of powers doctrine.

"The ISBA respects the governor's, and every citizen's, right to disagree with the decision. There are rules, however, that govern judicial conduct and appropriate procedures for dealing with complaints about the judiciary. Comments about individual judges are not the way to express disagreement with any court opinion."

Governor's office spokesman Brad Rateike said there would be no comment.

And today, this unsigned opinion piece in the Richmond Pal-Item that begins:

If the Indiana Supreme Court acts quickly, as the state requests, to reverse a ruling last week by a three-judge appellate court striking down the state's tough voter identification law, it could deny Hoosiers a needed opportunity to improve its law.

The Indiana Court of Appeals' ruling was blasted by an angry Gov. Mitch Daniels, who called it "preposterous."

But, was it?

What the justices of the appellate court said was that to impose a mandatory photo identification requirement at the ballot box but not have that same stringent requirement at nursing homes or for absentee ballots establishes a dual standard on Indiana voters that the court held is not "uniform and impartial" as required by Indiana's Constitution.

Given the fact that absentee voting is more prone to mischief and, in fact, the record should show, has prompted far more allegations of vote fraud, it does make sense for the Indiana General Assembly to revisit and amend the law to include nursing homes and other sources of absentee voting where ID is not currently required.

In doing so, it makes even more sense that Indiana seek to diminish absentee voting reliance by adopting statewide the early voting and vote centers concept that received very successful trial runs during the past couple elections in Wayne and Tippecanoe counties. Those casting early ballots at vote centers are held to the same stringent voter ID requirements as those voting Election Day.

Voter ID has been a political hot potato in this state and across the nation for too long. Judging by reactions to the appellate court's ruling, it remains so.

A misguided 2005 state law requires Indiana voters to produce an identification card with their photos when they cast their ballots at the polls.

Voters who mail in an absentee ballot face no such requirement.

On its face, the voter ID law makes it harder for people who vote on Election Day than for people who mail in a ballot – and as the Indiana Court of Appeals ruled Thursday, that makes the law unconstitutional.

Not surprisingly, state Republican officials who supported the voter ID law criticized the unanimous court ruling from the three-judge court, which included former Allen Superior Court Judge Paul Mathias.

“The gamesmanship going on here is irresponsible and needs to stop,” Secretary of State Todd Rokita said.

Both noted that the U.S. Supreme Court had already upheld the law, arguing that was enough. Given their positions, both Daniels and Rokita should know that the federal courts ruled on how the U.S. Constitution applies to the law, while the state Court of Appeals ruled on how the state constitution applies. The magnificent Indiana constitution conveys more rights to citizens and, in some ways, has clearer language than the U.S. Constitution. The federal and state court issues were not the same.

Surely, the governor and secretary of state should be among the loudest voices in demanding the state constitution be upheld. Instead, both scoffed at the state judges for daring to rule that the state constitution demands equality.

Saturday, September 19, 2009

Tony Mauro of The National Law Journal writes in a lengthy story dated Sept. 21st that begins:

On May 18, the U.S. Supreme Court gave corporate defendants a gift that keeps on giving: the Iqbal decision, which has made it easier than ever for defendants to shut down lawsuits before they get to the costly discovery stage.

Now, four months later, civil rights and consumer groups and trial lawyers are beginning to push back. They met on Sept. 14 in Washington, D.C., to lay plans for a two-pronged battle to undo what they see as a devastating blow to their lifeblood litigation. The campaign will be aimed at Congress as well as the rulemaking process for federal courts. Hearings are being planned for October in the House and the Senate.

"This ruling has threatened to upend the way we have been doing things for a very long time," said John Payton of the NAACP Legal Defense and Educational Fund, which is part of the growing coalition. "The alarm is quite real."

In Ashcroft v. Iqbal, which built on the 2007 Bell Atlantic Corp. v. Twombly decision, the Court said plaintiffs must include in their initial pleadings substantial, not "threadbare," factual assertions that give "facial plausibility" to their claims -- a major shift from the tradition of "notice pleading," which required only a simple statement of the case against the defendant.

With remarkable speed and success, "Iqbal motions" to dismiss because of insufficient pleadings have become commonplace in federal courts, already producing more than 1,500 district court and 100 appellate court decisions according to a Westlaw search. Many more are pending.

Environment - "Health Ills Abound as Farm Runoff Fouls Wells"

Continuing its series on water pollution, the NY Times published a front-page story Sept. 17 headed "Health Ills Abound as Farm Runoff Fouls Wells." It begins:

MORRISON, Wis. — All it took was an early thaw for the drinking water here to become unsafe.

There are 41,000 dairy cows in Brown County, which includes Morrison, and they produce more than 260 million gallons of manure each year, much of which is spread on nearby grain fields. Other farmers receive fees to cover their land with slaughterhouse waste and treated sewage.

In measured amounts, that waste acts as fertilizer. But if the amounts are excessive, bacteria and chemicals can flow into the ground and contaminate residents’ tap water.

In Morrison, more than 100 wells were polluted by agricultural runoff within a few months, according to local officials. As parasites and bacteria seeped into drinking water, residents suffered from chronic diarrhea, stomach illnesses and severe ear infections. * * *

Yet runoff from all but the largest farms is essentially unregulated by many of the federal laws intended to prevent pollution and protect drinking water sources. The Clean Water Act of 1972 largely regulates only chemicals or contaminants that move through pipes or ditches, which means it does not typically apply to waste that is sprayed on a field and seeps into groundwater.

As a result, many of the agricultural pollutants that contaminate drinking water sources are often subject only to state or county regulations. And those laws have failed to protect some residents living nearby.

See also this ILB entry from July 23, 2009 for a recent COA opinion re an Indiana "water utility fighting a federal discharge permit for an 8,000-head confined feeding operation."

The Indiana State Bar Association's just released statement on Gov. Daniels' comments in connection with the voter ID decision:

On Thursday, Sept. 17, the Indiana Court of Appeals issued a ruling in Indiana League of Women Voters v. Rokita, the “voter ID” case, and Gov. Mitch Daniels commented on the decision and the judges who heard the case. While the Indiana State Bar Association (ISBA) recognizes that Gov. Daniels has championed the cause of judicial independence, the State Bar is nevertheless compelled to emphasize that comments such as those attributed to the governor are not helpful in advancing appropriate respect for the courts and the judicial process, and honoring the separation of powers doctrine.

The ISBA respects the governor’s, and every citizen’s, right to disagree with the decision. There are rules, however, that govern judicial conduct and appropriate procedures for dealing with complaints about the judiciary. Comments about individual judges are not the way to express disagreement with any court opinion.

INDIANAPOLIS - The Indiana State Bar Association says Gov. Mitch Daniels was out of line in his criticism of Court of Appeals judges who struck down the state's voter ID law.

Daniels called the 3-0 ruling "preposterous" and transparently partisan Thursday. He also said the ruling was by a judge who had been reversed before and he expected would be again. Judge Patricia A. Riley wrote the decision.

The Bar Association said in a statement Friday that there are rules that govern judicial conduct and that comments about individual judges are "not the way to express disagreement with any court opinion."

Ind. Law - More on: "Lebanon mulls sex-offender ban: City is drafting an ordinance to keep convicts out of parks"

Lebanon’s city council members have reviewed the first draft of an ordinance that would ban registered sex offenders from Lebanon city parks.

Lebanon City Attorney Eileen Sims presented the draft ordinance Monday, and explained that it included a provision for an appeals process, similar to a process that is being done in Jeffersonville.

The proposed ordinance is based on Plainfield’s ordinance, which was challenged by the American Civil Liberties Union, in a November 2005 lawsuit filed on behalf of a registered sex offender identified only as John Doe. Earlier this summer, the Indiana Supreme Court declined to overturn Plainfield’s ordinance.

The idea of passing a ban here was raised by Lebanon City Councilman Brent Wheat in July, but the council delayed any action until they learned Indiana Supreme Court’s response to Plainfield’s ordinance.

After reviewing the draft of the Lebanon ordinance, Wheat expressed some concern that adding the ability to appeal could invite a lawsuit if some were granted permission to be in city parks, and others weren’t, but Sims said that the appeal would require the person to meet certain criteria outlined in the draft ordinance.

Ind. Decisions - Re the question of when the voter ID decision is applicable

Re the proposition that the COA election ruling has no practical effect until it is certified, I asked Joel Schumm, IU-Indy law professor, who responded:

The certification rule refers to action by the trial court in the particular case. For example, if the court of appeals reverses a custody determination, the children would not be yanked from the losing parent immediately. The trial court must wait until certification of the opinion to act. This is a good idea; the COA is potentially just an intermediate stop in the appellate process.

I think it plays out a little differently in the election context. If the COA opinion has not been vacated, what should each of the county clerks around the state do in administering the election? Following the COA decision would seem like the best bet and would not violate the certification rule. If this were a general election with party candidates, I suspect there would be injunctions and other litigation. I doubt proponents or opponents of the Wishard or school measures would be as concerned or motivated to litigate voter IDs.

There is an easy solution in this case, though. The AG could file a petition to transfer in the next week, along with a motion to expedite, asking that the response time be shortened from twenty days to one week for the other side and for an expedited decision on transfer from the Indiana Supreme Court. This would almost certainly be granted, and there would be a decision on transfer within three weeks--and in plenty of time for training of election officials. The Indiana Supreme Court can move very quickly, as it did in the toll road case. The direct appeal was briefed and decided in a few weeks. Here, a transfer petition could easily be litigated in less time. All the arguments have been researched and argued in the COA; they just need to be repackaged a bit for transfer.

I think there is a 99% chance transfer would be granted, the COA decision vacated, and the election would proceed under the existing law.

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

For publication opinions today (0):

NFP civil opinions today (4):

Latha Denny v. Kenneth Burger (NFP) - "Latha Denny (“Mother”) appeals a custody modification order granting primary physical custody of two of her minor children to their father, Kenneth Burger (“Father”). The sole issue is whether the trial court abused its discretion in determining that it was in the children’s best interests to be placed in Father’s custody. We affirm."

R.S. v. T.S. (NFP) - "R.S. (“Father”) appeals the trial court’s order modifying custody of his daughter B.P.S. and granting physical custody to T.S. (“Mother”). For our review, Father raises three issues, one of which we find dispositive: whether the trial court abused its discretion by failing to consider all of the statutory factors described in Indiana Code sections 31-17-2.2-1(b) and 31-17-2-8. Concluding the trial court failed to consider all of the statutory factors in reaching its decision, we reverse and remand for further proceedings in light of this opinion."

Melissa D. (Upchurch) Blair v. Yhom, LLC (NFP) - "Drawing each possible inference in Upchurch's favor, we conclude that her allegation that she did not receive actual notice of the tax sale is adequate to allege that Indiana Code section 6-1.1-25-16(7), dealing with notice requirements, was not satisfied. Assuming, as we must, that Upchurch did not receive actual notice of the tax sale, it is possible that this was because the notice given her was constitutionally inadequate, and that is all that is required at this stage. See Dominiack Mech., Inc. v. Dunbar, 757 N.E.2d 186, 188 (Ind. Ct. App. 2001) (“A motion to dismiss is properly granted only when the allegations present no possible set of facts upon which the plaintiff could recover.”). We conclude that Upchurch has stated a claim upon which relief can be granted and that dismissal is therefore inappropriate on Rule 12(B)(6) grounds. We therefore reverse and remand for further proceedings."

Cardinal Contracting LLC v. Landstar Logistics, Inc. (NFP) - "In sum, the trial court did not commit reversible error in denying Cardinal's attempt to admit Landstar's certificate of insurance into evidence. Neither is the court's judgment for Landstar clearly erroneous. Thus, we affirm the court's order in all respects."

Trial courts and county clerk's offices in Indiana would be reorganized under a plan to streamline the state's judicial system.

The plan from a panel of judges would have city, town and township small claims courts be absorbed into the county-level trial courts. Other proposals would have courts be funded by the state instead of counties and judges would be retained in six-year terms by a simple yes-no vote instead of current methods that vary by county.

Certain functions like court record-keeping would be reassigned from the county clerk to the courts, leaving the clerk's office to focus on supervising elections, issuing marriage licenses and collecting money.

Key areas of the plan would require legislative approval.

The proposal was adopted this week by directors at the Indiana Judicial Conference.

(1) All justices of the supreme court.
(2) All judges of the court of appeals.
(3) The judge of the tax court.
(4) All circuit, superior, probate, and county court judges.
(5) All municipal court judges who are serving on a full-time basis.
(6) Any retired judge who serves as a special judge and notifies the conference of the service.

And what is the Indiana Judicial Center Board of Directors and what is the Indiana Judicial Center?IC 33-38-9-4 provides:

(a) The activities of the judicial conference shall be directed by a board of directors having the following members:

(1) The chief justice of Indiana.
(2) The chief judge of the court of appeals.
(3) The president of the Indiana judges association.
(4) The president of the Indiana council of juvenile court judges.
(5) One (1) judge from each of the trial court districts established by the supreme court, elected for a term of two (2) years by the trial court judges of the district.
(6) Five (5) trial court judges appointed for terms of one (1) year by the chief justice of Indiana.

(b) The chief justice of Indiana shall serve as chairperson of the board of directors. The judicial conference, through the board of directors:

(1) shall establish a staff agency to be designated the Indiana judicial center; and
(2) may establish positions for an executive director, staff personnel, and other necessary personnel.

All personnel of the Indiana judicial center shall be appointed by the chief justice of Indiana, and their salaries shall be fixed by the supreme court, subject to appropriation by the general assembly.

Adding to the growing list of ILB entries on various aspects of the use of GPS tracking devices, yesterday the Massachusetts high court ruled:

[U]sing GPS devices as an investigative tool – which can require police to secretly break into a vehicle to install the device – does not violate the ban on unreasonable search and seizures found in the state’s Declaration of Rights.

“We hold that warrants for GPS monitoring of a vehicle may be issued,’’ Cowin wrote. “The Commonwealth must establish, before a magistrate… that GPS monitoring of the vehicle will produce evidence’’ that a crime has been committed, or will be committed in the near future.

The SJC said the devices can only be installed for 15 days. Generally, search warrants are in effect for just seven days.

Three justices – Justices Ralph Gants, Robert Cordy and Margot Botsford – generally agreed with Cowin's conclusion. But they said the SJC must address the issue through the prism of privacy rights of the individual to be free from constant government monitoring.

“Our constitutional analysis should focus on the privacy interest at risk from contemporaneous GPS monitoring, not simply the property interest,’’ Justice Ralph Gants wrote for the group.

“Only then will we be able to establish a constitutional jurisprudence that can adapt to changes in the technology of real-time monitoring, and that can better balance the legitimate needs of law enforcement with the legitimate privacy concerns of our citizens," he wrote.

For the first time, the Supreme Judicial Court ruled yesterday that the state constitution allows police to break into a suspect’s car to secretly install tracking devices using a global positioning system, provided that authorities have a warrant before they do so.

Ind. Law - "What is a habitual offender in Indiana?"

That is the headline to this Sept. 17th story by Dave Stephens in the South Bend Tribune. Some quotes:

At least five times since 1986, Leroy Hoover has been declared at fault in a car accident.

Yet he is not even close to being considered a habitual traffic offender who could have his driving license revoked for an extended period of time.

State records indicate that Hoover's license has been suspended only three times - in 1986, after leaving the scene of an accident, and in 1988 and 2000 for driving without insurance.

Hoover, 56, has been charged with a Class C misdemeanor for his role in the May accident that killed 4-year-old Shayla Aston and 6-year-old Shianna Aston in Mishawaka. A grand jury indicted Hoover with having metabolized marijuana in his system during the crash, and he is scheduled to appear in court on Oct. 1.

Hoover faces a maximum penalty for a Class C misdemeanor of 60 days in jail and a $500 fine if he is convicted. In Indiana, the presence of marijuana metabolite is classified as "driving under the influence," making it likely that Hoover, if found guilty, could have his driving privileges suspended for 90 days.

Dennis Rosebrough, spokesman for the Indiana Bureau of Motor Vehicles, said some convictions, like driving under the influence or without insurance, come with an automatic license suspension. But the length and severity of those suspensions can be altered by a judge, who may wish to grant privileges such as allowing a person to drive to work.

Rosebrough said a judge can also order a license to be suspended or revoked as part of a sentencing, even if state law doesn't specifically recommend it.

But for a driver to have his license revoked for an extended period of time, he has to be considered a habitual offender. * * *

To qualify as a habitual traffic offender, a driver must be convicted of two major offenses - such as reckless homicide, manslaughter or operating while intoxicated - that resulted in death or injury. Also, those convictions have to have happened in the last 10 years.

Habitual traffic offenders are also defined as people who have been convicted of three minor offenses in the past 10 years. Those offenses include: drunk driving, driving while suspended, driving without a license, criminal recklessness, drag racing and leaving the scene.

Hoover's record shows two convictions for leaving the scene of an accident, but the charges were issued 10 years apart. He's also been faulted for causing serious injury to children on two separate occasions - but the first time resulted in no charges and the second in a misdemeanor.

In other words, Hoover's accidents occurred too far apart, and with no clear criminal actions, for the state to consider him a habitual problem.

Ind. Decisions - One Indiana decision today from 7th Circuit

A jury convicted defendantappellant
Arthur J. Sims of distributing heroin, possessing heroin with the intent to distribute, possessing a firearm
after previously having been convicted of a felony, and
possessing a firearm in furtherance of a drug trafficking
offense. The district court ordered him to serve a prison
term of 106 months. Sims appeals, and we affirm his
convictions and sentence.

Courts - "David Jason Stinson found not guilty in football player’s death:

The ILB has had a number of entries, under the heading "You don’t see newspapers fighting to open court proceedings the way they used to, and people are starting to notice," the most recent dated Sept. 4th. The entries were about the then-ongoing trial of former Pleasure Ridge Park football coach Jason Stinson, "charged with reckless homicide and wanton endangerment in the heat-stroke death of PRP sophomore lineman Max Gilpin after he collapsed at an Aug. 20, 2008, practice." The Louisville Courier Courier successfully opening up the proceedings to the publc and press.

Despite his acquittal, Jason Stinson’s prosecution sent a strong message across the country that coaches must err on the side of caution when working players on hot summer days, state and national experts and coaches said Thursday.

They also said Stinson’s trial in the death of a 15-year-old player from heat stroke may spur the movement to require certified athletic trainers at high school sporting events, and to require ice pools on sidelines during games and practices in extremely hot weather.

“The thing with the coaching profession is that you have to realize you have to take every precaution,” said longtime St. Xavier High School coach Mike Glaser. “You can’t chance it with the young people you are entrusted with.”

But Glaser said a guilty verdict would have “put so much pressure on coaches. It would have made (some) scared about coaching in general.”

Ind. Decisions - More on "Indiana officials ridiculed the decision and said it would be appealed to the state Supreme Court"

[Governor and Indiana attorney] Daniels called the decision transparently partisan and particularly went after Appeals Court Judge Patricia Riley, who wrote the opinion and who was appointed by former Gov. Evan Bayh in 1994.

The other judges on the panel were also appointed by Democratic governors.

“It’s an extreme decision – one that flies in the face of much better judges frankly,” Daniels said.

"Voter ID decision resurrects debate: Governor slams ruling by state appeals court, calling it partisan" is the headline to this lengthy story today by Bill Ruthhart and Jon Murray of the Indianapolis Star. Some quotes:

The Indiana Court of Appeals' rejection of the state's controversial voter ID law Thursday has reignited a political firestorm over its merits and left Gov. Mitch Daniels accusing judges of playing politics.

The ruling fanned the flames on a debate that has raged since 2005, when Indiana became the first state to require voters to show government-issued photo identification at the polls.

Republicans have long held that the law strengthens the electoral process and prevents fraud, while Democrats have insisted that it disenfranchises elderly, disabled and poor voters.

Many thought the debate had been put to rest last year when the U.S. Supreme Court upheld the law, but Thursday's ruling was based on a League of Women Voters' challenge that the statute violated the Indiana Constitution.

"It's surprising, because several courts already upheld the photo identification law," said Michael Pitts, a professor at the Indiana University School of Law-Indianapolis who has studied voter ID laws across the country. "A lot of people saw this as a Hail Mary on the part of the opponents, but this is far from over. The (Indiana) Supreme Court most certainly will weigh in on this."

Pitts said there's no telling how the state's highest court will rule, but Daniels already is predicting a reversal.

The decision by the appeals court did uphold the general purpose of the law: Hoosiers must prove their identity before voting.

But the three-judge panel, led by Judge Patricia A. Riley, unanimously ruled that two provisions of the law run afoul of the Indiana Constitution's "Equal Privileges and Immunities Clause." The decision said the voter ID law is not applied in a "uniform and impartial" manner for two reasons:

It doesn't require mail-in absentee voters to produce a photo ID.

It exempts residents of state-licensed care facilities from the ID requirement if their facility serves as a polling place.

The decision would not be applied to any elections until the Indiana Supreme Court reaches a final ruling on the matter, according to the state's solicitor general's office. Indiana's next statewide elections are in 2010.

In the 2008 general election, about 200,000 Hoosiers voted absentee by mail, and thus did not have to produce a photo ID.

Less than an hour after the ruling, Daniels called it "preposterous" and immediately vowed an appeal to the Indiana Supreme Court.

The governor said the decision -- by judges all appointed by Democratic governors -- was "transparently" partisan and an act of "judicial arrogance." He also lashed out at Riley, who wrote the opinion, saying she had been "reversed before."

"It would be one thing if this had not been litigated from the bottom up through the federal system and if multiple courts, including the U.S. Supreme Court, had not already spoken," Daniels said. "The legislature had every right to write that law. This decision will be a footnote to history, eventually."

House Speaker B. Patrick Bauer, D-South Bend, applauded the decision and said the law had been used to disenfranchise thousands of voters. He rejected Daniels' assertion that the decision was a partisan one.

"He doesn't have a judicial temperament, does he? If he doesn't like something, his response is to make a personal attack," Bauer said of Daniels. "I think this decision was clear: You don't treat different people differently. It was easier to vote absentee than to vote in person." * * *

"This decision sends the signal that the state courts are the place to take the photo identification battle," said Pitts, the IU professor. "I think you'll see opponents go from court system to court system in states to fight this." * * *

Thursday's decision noted the legislature could have required mail-in absentee voters to sign an affidavit, but also said it was not the job of the court to "form suggestions for legislation."

Should the Indiana Supreme Court reach a similar decision, the door would be open for the legislature to alter the law.

Pitts said requiring IDs at state-licensed care facilities would be an easy fix to one of the areas cited in the decision.

But he questioned how having mail-in absentee voters sign an affidavit could be equaled to presenting photo ID at a polling place. Instead, Pitts said a more reasonable solution might be to require absentee voters to provide a photocopy of their identification cards.

That, however, could open up the law to criticism that allowing absentee votes without an ID was designed to avoid -- hardships on senior citizens, many of whom do not have photo identification.

"I don't see a good fix that doesn't create problems elsewhere," Pitts said. "This isn't a narrow decision that's just on the margin of the law."

The governor said he doesn't think the General Assembly will need to revisit the matter.

"I don't think it will be necessary," he said. "This is an extreme decision, one that flies in the face of much better judges, frankly, and I'll look forward to its reversal."

As for Daniels' assertion that Thursday's decision was politically motivated, 13 of the 15 judges on the appeals court were appointed by Democratic governors. Democrats also appointed three of the five judges on the Supreme Court.

Pitts said political viewpoints and backgrounds play a role in a judge's decision but said it is wrong to characterize the court's decision as one motivated by political influence.

"Governor Daniels' statements indicate people should not have confidence in the judiciary," he said. "I hope whatever decision is made by the Supreme Court is 5-0 and doesn't fall along political lines, so people can have that confidence."

The 29-page decision was hailed by the League of Women Voters, which filed a challenge to the voter ID law in 2008, and by Democratic leaders who had opposed its passage. But it was blasted by Republican leaders who supported the toughened restrictions in the measure as a way to combat vote fraud.

Karen Celestino-Horseman of Indianapolis, who with Bill Groth represented the non-partisan League in the case, said the group and its lawyers were “absolutely delighted” with the decision.

“We thought that the Indiana Court of Appeals ruling was well reasoned and written,” Celestino-Horseman said. * * *

The League, meantime, filed friend-of-the-court briefs in the federal case but wasn’t a party to it. After the U.S. Supreme Court ruling, however, the organization filed a state appeal of the trial court ruling, targeting the different rules for absentee ballots in contrast with in-person voting. The League also cited preferential treatment given to nursing home residents who vote where they live but aren’t required to show a photo ID, unlike other voters.

The appeals court sided with the League, citing the state Supreme Court’s conclusion in a 2006 case upholding more stringent rules for absentee ballots, such as requiring two sets of clerks’ initials on ballot envelopes. Because of inherent differences with in-person ballots, the Supreme Court ruled, mailed ballots could be more susceptible to “improper influences” and fraud.

“Because of this conclusion, the League contends that it is irrational for our legislature to require identification of in-person voters but not require an affidavit affirming the identity of mail-in voters,” Judge Patricia Riley wrote for the appeals panel. “We agree. If it is reasonable to ‘more stringently govern absentee balloting,’ then it follows that a statute that imposes a less stringent requirement for absentee voters than for those voting in person would not be reasonable. That is what the voter ID law does.”

Judges James Kirsch and Paul Mathias concurred.

The appeals court said the problem with nursing home voting could be fixed by requiring those voters to show an ID. The different treatment for in-person and mail-in voters could have various remedies, the panel said, “but it is not our task to form suggestions for legislation.”

The Washington Post today carries the AP story by Charles Wilson and Mike Smith.

An Indiana appellate court on Thursday struck down a state law requiring voters to show identification — a law that the United States Supreme Court declared constitutional just last year.

The court said the law violated the Indiana constitution by not treating all voters impartially.

The state legislature passed the voter ID law in 2005, and it was challenged in federal court. The Supreme Court found the law constitutional in April 2008. In July of that year, however, the League of Women Voters brought a new suit in state court.

Thursday’s decision, then, had a sense of déjà vu for some, but with a different outcome. “The court here accepted a lot of the arguments that were rejected by the U.S. Supreme Court,” said Richard L. Hasen, a professor at Loyola Law School in Los Angeles, “so it’s like a second bite of the apple.”

The major difference between Thursday’s state court decision and the Supreme Court’s decision in Crawford v. Marion County Election Board is that the state court was interpreting the state constitution, while the Supreme Court interpreted the Constitution of the United States. Generally, state courts are given the last word in interpreting their own constitutions.

Indiana’s “Equal Privileges and Immunities Clause” is similar to the Equal Protection clause of the United States Constitution. But the unanimous three-judge panel of the Indiana Court of Appeals found that the voter ID law violated the guarantee of equal protection for all citizens because it did not require mail-in voters and residents of some nursing homes to produce state-approved identification.

Under Indiana law, the court said, it could be reasonable to regulate absentee balloting more stringently than in-person balloting. But the voter ID law does the opposite, the court argued, and “imposes a less stringent requirement for absentee voters than for those voting in person.”

Indiana officials ridiculed the decision and said it would be appealed to the state Supreme Court. During a news conferenceon Thursday, Gov. Mitch Daniels, a Republican, attacked the court of appeals decision as “preposterous,” and told reporters “there’s nothing in the Indiana Constitution that goes beyond what the federal Constitution provides here.” He predicted that it would be overturned, saying, “This decision will be a footnote to history, eventually.”

But Daniel P. Tokaji, an associate professor at Ohio State University’s Moritz College of Law, said that the Indiana Constitution “does indeed provide broader protection for voting rights” than the federal Constitution, and suggested the judges did not believe the law was intended to reduce fraud.

Indiana Governor Mitch Daniels called the ruling "transparently partisan", and promised an appeal. He said, "It's a preposterous decision, an extreme decision and came in this case from a judge who's been reversed before and I expect it to happen again."

The governor went on to call the ruling an act of judicial arrogance.

My thoughts: Now really! I find the Governor's heated statements about the opinion very disappointing, and his personal remarks disparaging the judge way over the top.

[Updated] A reader writes, highlighting the use of the phrase "transparently partisan":

In In re Wilkins, 782 N.E.2d 985, 985 (Ind. 2003), the Court held that while lawyers can criticize decisions of judges, they cannot recklessly make false claims about a judge's integrity.

Canon 3 B.(2) of the Code of Judicial Conduct clearly states that a judge "shall not be swayed by partisan interests...".

It appears that Gov. Daniels [a member of the Indiana bar] has accused, falsely or with reckless disregard for the truth, Judge Riley with violating Canon 3 by making a decision based on her partisan interests rather than on the law or the constitution. This statement would seem, under the Wilkins case, to be a violation of Rule 8.2 of the Code of Professional Responsibility.

Law - "College Stars Run for Cover From Fans’ Cameras "

This story in the NY Times today, reported by Pete Thamel and Thayer Evans, begins:

While shopping recently at RadioShack, Florida quarterback Tim Tebow was approached by a woman with a seemingly innocuous request to take a picture with him. But an instant before her mother snapped the photo with a cellphone camera, the woman tried to take off her shirt.

“It’s happened four or five times,” Tebow said with a sigh. “Most of the time I just dive out of the picture. Some people can just be crazy.”

In the era of Twitter, Facebook and Deadspin.com, being the big man on campus no longer means being the life of the party. For all the images of marching bands, cheerleaders and raucous student fans associated with college football, the romantic notion of a quaint campus life for star quarterbacks like Tebow, Oklahoma’s Sam Bradford and Texas’ Colt McCoy has all but disappeared, killed off by a combination of cloying fans and new technology.

Athletic departments now monitor social networking Web sites, and cellphones are collected at the door of college parties to try to keep embarrassing or illegal moments off the Internet.

“The latest stuff with the cellphones and digital devices has erased the boundaries between public and private,” Michael Oriard, an Oregon State professor who has written three books about the culture of college football, said in a telephone interview. “It’s an enormous jump, as it’s not just ESPN or Fox cameras, but it’s everyone with a cellphone.”

Law - More on: Maintaining governmental emails in Boston and elsewhere

Updating this ILB entry from Sept. 15, quoting a Boston Globe story about a high level city employee who routinely deleted his emails, apparently much has gone on since that story, today the Globe's Jonathan Saltzman reports under the headline "Forensics firm will scour hard drive: Specialists say retrieval likely for city’s data." The story begins:

Computer forensics specialists will probably be able to retrieve at least some of the e-mails deleted, in an apparent violation of state public records law, by the top policy aide to Mayor Thomas M. Menino, according to several specialists who provide such services.

Yesterday, responding to an order by Secretary of State William F. Galvin, the city hired a computer forensics firm, StoneTurn Group, to scour City Hall computers for the missing e-mail of Michael J. Kineavy, Menino’s chief of policy and planning. The issue came to light after the Globe filed a public records request for the messages.

It is possible that recovering the data might prove a challenge, specialists said, because Kineavy apparently dragged e-mail into his trash folder and then emptied the folder each day before the city’s computer system made an automatic backup at midnight. But much, if not all, of the e-mails are probably somewhere on Kineavy’s hard drive, which the city, under Galvin’s orders, seized and secured yesterday.

“If it’s only been going on for a few years, I would be surprised if all of it isn’t called back,’’ said Rob Fitzgerald, chief executive of the Lorenzi Group, a Topsfield-based provider of digital forensic services.

Nonetheless, Fitzgerald said, the routine deletions of e-mails by Kineavy was disturbing because state public records law requires municipal employees to save electronic correspondence for at least two years, even if the contents are of “no informational or evidential value.’’

Fitzgerald, whose company has been hired by cities and towns investigating employees for misusing computers, said municipal workers in Massachusetts too often flout the law about saving digital documents. He said that if Kineavy routinely deleted e-mails, it was probable that other City Hall workers were doing the same.

Mayor Thomas M. Menino’s administration was warned by a state judge late last year that city employees were deleting e-mails in apparent violation of state public records law, but city officials failed to halt the practice.

The judge’s order, made in a lawsuit against the Boston Redevelopment Authority, shows that the problem of records destruction at City Hall has extended well beyond Menino’s closest aide, Michael J. Kineavy, whose e-mails the Globe sought through a public records request this summer.

The Indiana Judicial Conference unveiled a long-term strategic plan to improve the Indiana system of justice. “This is our roadmap for the future,” explained Chief Justice Randall T. Shepard. “It is a set of priorities that will allow us to improve the professionalism, efficiency, and effectiveness of the Indiana Judiciary.” The plan was presented to approximately five hundred judges in attendance at the annual September Judicial conference and adopted by the Board of Directors of the Indiana Judicial Conference.

Copies of the release and the plan itself should be available shortly on the Court site and the ILB will provide links.

For background, start with this ILB entry from Jan. 6th headed "Still more on 'Judge gives reprieve to Hoosier Energy'". It includes this quote that the ILB trasncribed from the oral argument:

Early into yesterday's oral argument (at about 3:40), one of the 7th Circuit judges describes the purpose of yesterday's argument: "here is this complicated transaction that has taken place, and for reasons that probably have a lot to do with the credit markets, it is unraveling, and what the district court was asked to do was make sure that the litigation could go forward in a way that would best protect any number of possible outcomes ... , and so we are here to review whether, as we have now modified it, this preliminary injunction is an acceptable way to do that, was that an abuse of discretion, so I guess I'm a little worried about getting too far into the merits of the underlying deal."

All of these uncertainties collectively support the district
court’s conclusion that Hoosier Energy has some prospect of
prevailing on the merits. Because appellate review is deferential,
the district court’s understanding must prevail at the interlocutory
stage.

But what was impossible in fall 2008 may well be possible in
fall 2009. What is more, the longer this impasse continues, the
more the balance of equities tilts in favor of John Hancock. Recall
that the reason for the credit-default swap was concern that
the Merom station would eventually become non-economic because
of changes in the market for electricity, the regulation of
emissions from coal-fired stations, or the advancing age of the
plant. The more time passes, the more serious this risk—and
the greater the risk that one or another problem may afflict
Hoosier Energy as a firm. If, as Hoosier Energy asserts, meeting
Ambac’s demands under the swap contract will drive it into
bankruptcy, then Hoosier Energy must be skating close to the
edge, and the longer it skates there the greater the cumulative
risk that it will fall over. Similarly Ambac may become less desirable
as a swap partner; while this appeal has been under advisement,
Ambac’s credit rating has been reduced twice.

John Hancock is entitled to the security it negotiated
against these possible outcomes. The injunction bonds, at only $22 million in liquid security, do not cover John Hancock’s exposure.
The change in Ambac’s credit rating, in particular, requires
the district court to take a new look at the adequacy of
the Rule 65(c) security promptly after receiving this court’s
mandate (which will be issued together with this opinion). So
although we affirm the district court’s preliminary injunction,
we conclude that, if Hoosier Energy has not produced a replacement
for Ambac by the end of 2009, the time will have
arrived when the court must let John Hancock realize on its
security. The district court itself stressed the word “temporary”
in “temporary commercial impracticability”; we are confident
that the court will not allow “temporary” to drag out in the direction
of permanence. AFFIRMED

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

Kenneth and Elsie Lobb (collectively “the Lobbs”) appeal from the dissolution court's judgment ordering the sale of their real estate to satisfy a judgment lien from a decree that dissolved the marriage of Melissa Hudson-Lobb (“Wife”) and Kevin Lobb (“Husband”). We address a single dispositive issue on review, namely, whether the court erred when it determined that the money judgment awarded to Wife in the Decree of Dissolution of Marriage (“Decree”) constituted a judgment lien against the Lobbs' real estate. * * *

We conclude that on these facts, as a matter of law, it was unnecessary for the Decree to have been entered in the Record of Judgments and Orders for the award in favor of Wife to have been a judgment lien on the property enforceable against the Lobbs. Again, “where one spouse is ordered to pay the other spouse money in installments, such final judgment automatically creates a judgment lien, "except where the exercise of the court's discretion would specifically eliminate it." Reed, 508 N.E.2d at 1259. The dissolution court here took no steps to eliminate the creation of a lien. And the Lobbs had actual notice of the Decree's money judgment in favor of Wife and that Husband had not paid all of that judgment. Thus, the unpaid award in the Decree constitutes a judgment lien in favor of Wife enforceable against the Lobbs. The Lobbs' contention to the contrary must fail.

Alisha Harradon and William Jones, Jr. (collectively “Parents”) filed a complaint in Starke Circuit Court against Keith and Kathy Schlamadinger (collectively “the Schlamadingers”) alleging that the Schlamadingers' negligence proximately caused the death of their infant child. The Schlamadingers filed a motion for summary judgment, which the trial court granted. Parents appeal and argue that the Schlamadingers owed a duty of reasonable care to the child, and that the question of whether the Schlamadingers breached that duty creates a genuine issue of material fact precluding the entry of summary judgment. Concluding that the Schlamadingers are entitled to judgment as a matter of law, we affirm. * * *

The law does not require the Schlamadingers to protect a youthful invitee, such as the baby, from a danger on their premises which Parents themselves created, were fully aware of, and yet consciously disregarded. See Johnson, 595 N.E.2d at 752 (citing Restatement (Second) of Torts §343A). Although the two-month-old baby could not himself be aware of the risk of sleeping on a sofa with his mother, Parents were and chose to do so anyway. Importantly, there is also no evidence in the record that Kathy observed or had actual knowledge that Alisha was sleeping on the sofa with the baby when he suffocated. In her deposition, Kathy testified that she assumed the baby was sleeping in its car seat.

As a matter of law, under the facts and circumstances before us, the sofa was not a dangerous condition on the Schlamadingers' premises, and even if it could be found to be such, Parents knew and assumed the risk involved with Mother's decision to sleep with the baby on the sofa. Parents' designated evidence cannot surmount the conjunctive preconditions to liability set forth in Section 343. That same evidence leads us to conclude as a matter of law that the Schlamadingers did not breach the duty of reasonable care they owed to Parents' baby. Accordingly, we affirm the trial court's grant of summary judgment in favor of the Schlamadingers.

NFP civil opinions today (2):

Kenneth Cole Fullmer v. Allstate Property & Casualty Insurance (NFP) "Based on the foregoing, we conclude that Fullmer waived his opportunity to have the jury instructed that it was proper to name only Allstate as a defendant, and even if the trial court had erred by refusing to give that instruction, Fullmer has failed to demonstrate a reasonable probability that his substantive rights were adversely affected."

Rosalie Jarvis v. Harold Drees (NFP) - "Rosalie Jarvis appeals the trial court’s failure to award her certain attorney fees in her action for obtaining an order of protection with respect to Harold Drees. Jarvis presents the following restated issue for review: Did the trial court order Drees to pay Jarvis’s attorney fees in an amount less than the amount to which she was entitled? We reverse and remand with instructions."

that the Voter I.D. law violates Indiana Constitution Article 1, Section 23, and must be declared void because it regulates voters in a manner that is not uniform and impartial. Reversed and remanded.

From Judge Riley's 29-page opinion:

The League raises three issues on appeal, which we restate as the following three:

(1) Whether the trial court erred when it concluded that the Voter I.D. Law does not violate Indiana Constitution Article 2, Section 2; (2) Whether the trial court erred when it concluded that the Voter I.D. Law did not violate Indiana Constitution Article 1, Section 23; and (3) Whether the Voter I.D. Law is a reasonable, uniform, and impartial regulation of voters.

In rebuttal, the Appellee-Defendant, Indiana Secretary of State, Todd Rokita (Rokita), raises one additional issue: Whether the League's action for declaratory judgment is justiciable as filed with the Indiana Secretary of State being the only named defendant. * * *

[II] The League concedes that its first claim relies upon a determination of whether the Voter ID Law is a procedural regulation or, as it contends, a substantive voting qualification. It contends that our legislature is prohibited from adding voter qualifications to those which exists in Indiana Constitution Article 2, Section 2. However, if the Voter I.D. Law is not a qualification, but rather a regulation of otherwise qualified voters, then it does not violate Article 2, Section 2. * * *

[W]e find it apparent that our supreme court has departed from its conclusion in Morris that in the absence of constitutional provision a voter registration law is qualification of voters which cannot be added by our legislature. Because of the similarities in voter registration programs and the Voter I.D. Law, we find no reason why the similar conclusion would not apply here. As such, we conclude that the Voter I.D. Law is not a qualification, but is rather a regulation of the time, place, or manner in which otherwise qualified voters must cast their votes. Therefore, if the Voter I.D. Law is to run afoul of our constitution, it is not for the reason that it imposes a qualification upon our electorate in the absence of constitutional provision.

[III] The League contends that the Voter I.D. law violates Article 1, Section 23 (Section 23) of the Indiana Constitution, otherwise known as the Equal Privileges and Immunities Clause, which provides: “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” * * *

The League contends that three aspects of the Voter I.D. Law violates Section 23: (1) the disparate treatment between mail-in absentee voters and in-person voters; (2) the disparate treatment between voters who reside at state licensed care facilities that by happenstance are polling places and elderly and disabled voters who do not reside at state licensed care facilities that also happen to be polling places; and (3) the requirements that an identification contain an expiration date and photograph is not reasonably related to the purpose of the statute. * * * [ILB - the Court in its analysis agrees with 1 and 2] * * *

[IV] The League also contends that the Voter I.D. Law runs afoul of another aspect of our governing election law: all voter qualifications must be uniform. * * *

We fail to see how the Voter I.D. Law's exception of those residing in state licensed care facilities, which happen to also be a polling place, would be a uniform or impartial regulation. Furthermore, the Voter I.D. Law treats in-person voters disparate from mail-in voters, conferring partial treatment upon mail-in voters.

It seems that the inconsistent and impartial treatment favoring voters who reside at state care facilities which also happen to be polling places could be excised from the Voter I.D. Law without destroying the primary objectives of the Law. However, the same cannot be said for the inconsistent and partial treatment favoring absentee voters who choose to mail their votes without destroying the opportunity for mailing votes. There may be different ways in which the inconsistent and partial treatment of the Voter I.D. Law could be cured, but it is not our task to form suggestions for legislation. See State ex rel. Indiana State Bd. of Finance v. Marion County Superior, 272 Ind. 47, 52, 396 N.E.2d 340, 344 (1979) (“Our constitution is clear that the judicial department cannot exercise any of the functions of either the legislative department or executive . . . .”). Therefore, we must reverse and remand, with instructions to the trial court that it enter an order declaring the Voter I.D. Law void.

[Updated at 12:30 PM] Jon Murray and Mary Beth Schneider have posted this story on the Indianapolis Star website. Some quotes:

The Indiana Court of Appeals today declared Indiana's voter ID law unconstitutional because it does not apply uniformly to all voters.

The three-judge panel unanimously held that the requirement that voters present government-issued photo identification at the polls runs afoul of the Indiana Constitution's "Equal Privileges and Immunities Clause," which provides: "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens."

Two reasons were cited by the Court of Appeals: the law doesn't require absentee voters to provide an affidavit affirming their identity even while requiring photo identification for in-person voters; and the law exempts residents of state-licensed care facilities from the ID requirement if their facility happens to be a polling place. * * *

Gov. Mitch Daniels, who said he had not read the ruling but had been briefed on it, called the result "preposterous" and "an act of judicial arrogance."

He said it would be appealed and, he predicted, overturned. He noted that the voter ID law already had been approved by other courts, including the U.S. Supreme Court, which upheld it last year in a 6-3 opinion.

"The legislature had every right to write that law. This decision will be a footnote to history," Daniels said. * * *

Because the newer suit deals only with state-based claims, the U.S. Supreme Court cannot review today's ruling.

Instead, Indiana officials can ask the Indiana Supreme Court to intervene. But for now, the Court of Appeals' decision orders Marion Superior Court, which had dismissed the lawsuit, to declare the voter ID law void.

Niki Kelly has posted this brief story for the Fort Wayne Journal Gazette - here is a snippet:

Gov. Mitch Daniels immediately said the state would appeal the "preposterous decision," noting the law has been upheld by three federal judges.

"It’s an act of judicial arrogance," he said.

The U.S. Supreme Court found the 2005 law requiring Hoosiers to present photo identification at the polls to be constitutional based on the U.S. Constitution.

But Thursday’s ruling was based on a review of the Indiana Constitution.

This is really interesting. Ashby Jones has this entry today on the WSJ Law Blog. Here is a snippet:

The issue largely concerns a comment Sotomayor made last week during the Citizen’s United case. During arguments in the case, the court’s majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.

But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights people have.

Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”

Courts - "Stolen marriage licenses lead to charges for Lexington man"

That is the headline to this story by Greg Kocher in the Lexington Herald-Leader. Some quotes:

NICHOLASVILLE — Police arrested a Lexington man Wednesday in the theft of marriage certificates from county clerks' offices.

William Bush Jr., 50, was arrested in Jessamine County and charged with 93 counts of tampering with public records, a felony, Chief Deputy Allen Peel said. He was being paid by a mortgage-insurance company for entering data from the publicly available documents. There was one criminal charge for each page, but a later count found there to be 105 recovered documents from Jessamine, Peel said.

County clerks who had reported missing marriage certificates in August were relieved to hear that they had been recovered.

"It's wonderful. I am so thankful," said Bourbon County Clerk Richard Stipp Eads.

"I was afraid he had destroyed them," said Woodford County Clerk Judie Woolums.

Peel and Jessamine Sheriff's Detective John Bourne were still counting documents Wednesday afternoon at the sheriff's office.

In addition to the 105 documents from Jessamine, police retrieved 267 from Bourbon, 146 from Fayette, 166 from Madison, 221 from Scott and 167 from Woodford. (Eads, the Bourbon clerk, said he has counted 256 missing records, not 267.) * * *

County clerks in Central Kentucky began noticing missing marriage certificates in mid-August.

The Kentucky County Clerks Association notified all 120 clerks about the matter shortly thereafter.

Property records, mortgages, liens, fiscal court orders and other documents are all available for the public to see in the offices of county clerks.

Bush told police he was a contract worker for Pro Data Research of Burlington, N.C., and that he gathered information from public documents for the company.

"This online company was paying him 40 cents per marriage license to enter information," Bourne said.

"I guess he didn't want to pay for the copies," Peel said.

Clerks charge different amounts per page, but it typically ranges from 25 to 50 cents.

Woolums had said in August it is not uncommon for researchers to collect information from marriage records to send newlyweds information about home mortgages, but records had not previously been stolen.

An employee for Pro Data Research, which sells mortgage insurance, had no comment Wednesday.

The company's Web site tells prospective researchers: "You'll work your own hours, pay nothing up front and enjoy the security of knowing we won't stop needing your data as long as people enjoy the American dream of home ownership."

Marriage licenses are issued in the county clerk's office of each county. The bride and groom must appear together, and the license is valid for 30 days from the date it is issued. The license must be used in Kentucky.

The license does not have Social Security numbers, but it includes the name and address of the bride and groom; their date of birth and age; their place of birth; father's name; mother's first and maiden name; whether they are single, divorced or had a marriage annulled, or widowed; the number of previous marriages of bride and groom; the occupations of the bride and groom; and the race of the bride and groom.

Tampering with public records is a class D felony punishable by one to five years in prison.

An interesting story today by Lydia X. McCoy of the Evansville Courier & Press:

The attorney for a Boonville, Ind., woman once charged with stealing more than $40,000 from the Warrick County treasurer's office is asking that the dismissal of the case be modified so it may not be refiled.

Last month, Warrick County prosecutor's office agreed to the dismissal of charges against former deputy treasurer Elaine Newton without prejudice, meaning they could be refiled.

Anthony Long, Newton's attorney, said his latest motion is "based on the state's failure to timely prosecute this cause of action."

Newton was charged in 2006 with 14 counts each of theft and not depositing public funds from the treasurer's office. It was alleged that the now 51-year-old had falsified records to steal the money between December 2003 and November 2004.

She was arrested but has been free on bond. In an interview last month, Newton said she has maintained her innocence from the beginning.

The agreement to dismiss the charges came after Warrick County Superior Court Judge Keith Meier suppressed hundreds of pieces of evidence in the case. That decision came after the Warrick County prosecutor's office said it could not determine what had been taken from Newton's desk and workspace and what had not.

Prosecutors have said, though, they planned to appeal the court's decision to suppress evidence.

If Meier's ruling is overturned, charges will be refiled and the prosecutor's office will continue prosecution, Jo Ann Krantz, Warrick County chief deputy prosecuting attorney, said at the time of the dismissal.

Long said in his motion more than 1,050 days have passed "since (Newton) surrendered herself for arrest in this cause, and based on the plain and simple language of Criminal Rule 4, (Newton) is entitled to discharge in this cause 'with prejudice' based on the state's failure to timely prosecute."

Courts - "Nobody Puts Baby Sonia Sotomayor in a Corner"

From Above the Law, quoting the WAPO:

Justice Sonia Sotomayor would have been the belle of the ball even if she had never left her table, so the room exploded when actor Esai Morales pulled the Supreme Court’s first Latino member onto the dance floor for an impressively confident salsa.

Jenny Kephart admits that she's a pathological gambler who lost the $125,000 that an Indiana casino advanced her during one unlucky night at a blackjack table. But in a two-year court battle, she has argued that she doesn't owe the casino a dime because its employees should have denied such an addicted gambler access to the card table.

The Indiana Supreme Court is scheduled to decide next month if she has to repay the casino, with potential legal implications that could stretch far beyond the borders of Indiana.

On March 18, 2006, Kephart went to Ceasars Riverboat Casino, now the Horseshoe Southern Indiana casino, where she embarked on a gambling spree and, subsequently, lost $125,000 in credit provided by Caesars, according to court documents. That same night, Kephart had already lost at least $8,000 of her own money, according to her attorney.

Ceasars and Horseshoe are owned by the same corporation, Las Vegas-based Harrah's Entertainment.

The following year, when the casino sued her for failing to repay the quarter-million dollars, Kephart filed a countersuit, claiming she was a "pathological gambler" and that the casino knowingly "took advantage of her to enrich itself."

The case eventually ended up in the Indiana Court of Appeals, which ruled in favor of the casino in March, saying that Kephart's lost money was an "injury she chose to risk incurring."

Kephart's lawyer, who filed a petition to the Indiana Supreme Court, told ABCNews.com that he's pleased he'll get another chance to argue how he says the casino wronged his client.

"This casino intentionally, knowing she was a compulsive gambler, went after her to get her to gamble," said Kephart's attorney, Terry Noffsinger. "And, of course, the odds are in the favor of the house and she lost a lot of money." * * *

Ed Feigenbaum, the editor of Indiana Gaming Insight, and a lawyer, said that the decision by the Supreme Court to take on the Kephart case is telling and could have ramifications that reach far beyond Indiana's borders.

"In Indiana, there isn't a great deal of law and certainly, not real, black-letter law on this particular topic," said Feigenbaum, who has no connection to the Kephart case. "We've only had casinos since the beginning of the 1990s, so we're still experiencing a lot of the general civil litigation that follows these types of things."

Feigenbaum said he has rarely seen the appellate judges be as outspoken in their court opinions as they were in the Kephart case and that might be the reason the Supreme Court starting paying attention, he said.

Even in the majority opinion, which was 2-1, one of the judges expressed concerns about the casino's willingness to extend credit to Kephart.

The outcome of the Kephart case could also influence gambling law elsewhere, said Feigenbaum, who added that he couldn't think of another case in which a U.S. court has ruled in favor of the compulsive gambler.

"This is a court that has gained some notice in recent years for being well-reasoned," he said. "This is a ruling that, one way or another, could be looked at by other courts and picked up upon."

Wednesday, September 16, 2009

Ind. Courts - Court makes a number of rule changes

In addition to new evidence rule 617, and the rewrite of the child support rules, the Supreme Court has issued orders making a number of other changes to the court rules. The ILB has obtained copies of these documents, plus a non-scanned version of the child support rules:

Gavin Rose, who has furnished the briefs, notes: "The State’s brief is scanned upside down because the binding holes kept getting jammed in the scanner when I tried to run it through right-side-up." (ILB: I was able to OCR it; the rest of the documents were in Word format.) Rose adds: "Please also note that the first footnote in the reply brief has been redacted. The public-access motion seeking leave to file that footnote under seal is also attached."

Many thanks for making these documents available.

Statement of the issues from Appellants' brief:

1. Whether the trial court erred in determining that this case is not ripe for review, given that the agency policy presently at issue, wherein all criminal defendants in Indiana who are adjudicated to possess insufficient comprehension to stand trial pursuant to Indiana Code § 35‐36‐3‐1, et seq., are automatically and indefinitely placed in the restrictive environs of a state institution operated by the Division of Mental Health and Addiction for the provision of “competency restoration services,” has undisputedly been applied to the appellants and given that release planning and consideration for alternative placements is something that must be undertaken—and is undertaken for all other patients—beginning at the very outset of a patient’s institutionalization.

2. Whether the trial court erred in determining that it was prohibited from reaching the merits of the appellants’ claims by the separation‐of‐powers doctrine encapsulated in Article 3, Section 1 of the Indiana Constitution.

3. Whether the agency policy presently at issue—which is applied to incompetent criminal defendants regardless of the needs of the particular patient, regardless of the severity of the offense with which he or she has been charged, and regardless of the likelihood that the patient may ultimately gain competency — violates Indiana law and the Fourteenth Amendment to the United States Constitution.

In addition to the changes to the rules of evidence announced yesterday, the Court also issued an order making substantial changes to the child support rules and guidelines, effective Jan. 1, 2010. Find the Order here - unfortunately it is a 73-page scanned document.

The Order is approved by CJ Shepard, and JJ Dickson and Boehm. JJ Sullivan and Rucker dissent in part, writing:

We dissent from those amendments to the Guidelines that have the effect of overruling Grant v. Hager, 868 N.E.2d 801 (Ind. 2007). Grant held that there is a rebuttable presumption that neither parent owes the other support in a circumstance where the Child Support Obligation Worksheet calculation produced a negative amount for the non-custodial parent's child support payment because of the application of the Parenting Time Credit. Under the amendments to the Guidelines approved in this Order, however, there will be a rebuttable presumption in such circumstances that the custodial parent must make child support payments to the non-custodial parent equal to the negative amount.

We believe that the Guidelines' presumption in such circumstances should continue to be that neither parent owes the other support. We also note that, notwithstanding this amendment, the trial court has authority to deviate from the new Guidelines amount and order that neither parent owes the other support based on their respective incomes and parenting time arrangements if the court had concludes that it would be unjust not to do so and the court makes the written finding mandated by Child. Supp. R. 3.

Here is the ILB summary of the 3-2, June 27, 2007 Supreme Court decision in the case of Tina M. Grant v. Gregory J. Hager. Notice that J. Sullivan wrote the majority opinion, in which Shepard, C.J., and Rucker, J., concurred. Boehm, J., dissented with a separate 3-page opinion in which Dickson, J., concurred.

Ind. Law - More on: Indiana malpractice cap may be challenged

Attorneys for a widower who won an $8.5 million medical malpractice verdict against Community Hospital North have filed a lawsuit to challenge a state law that reduced the award to $1.25 million.

John Muller of Montross Miller Muller Mendelson & Kennedy and Mike Stephenson of McNeely, Stephenson, Thopy & Harold today in a news release announced the filing of the challenge in Marion Circuit Court.

They said their challenges is based on sections of the Indiana Constitution that a jury's decision must remain intact, and the General Assembly cannot grant privileges or immunities to any cititzen or class of citizens.

Carl Malamud recently gave a speech at the Gov 2.0 conference in DC reviewing the history of access to government generated legal documents, and calling for better and freer access to this information now. There's an eighteen or so minute video just posted online, in my opinion a worthwhile speech. Here's the link, or you can read the speech (plus some worthwhile footnotes) in pamphlet form here.

Environment - California water bottling company to build Plainfield plant

The largest private label bottler of water in the country will build a plant in Plainfield.

Niagara Bottling Co., a family-owned operation based in southern California, plans to invest at least $35 million into the highly automated facility. It will make the plastic bottles and then fill them with water to be sold in grocery and convenience stores and most of the major big box discount stores and clubs.

Niagara plans to buy approximately 300,000 gallons a day of Plainfield's municipal water from wells, then treat the water and fill the bottles for shipment via I-70 and other nearby interstate highways.

Niagara also is negotiating with an Indiana company to buy truckloads of natural spring water to bottle.

Details of the economic development deal including state tax credits haven't been announced, though company officials confirmed they have talked with Gov. Mitch Daniels. The project was disclosed Monday night in the public meeting, when the Plainfield Town Council approved a package of local incentives to lure the company. * * *

The Plainfield package of incentives includes approval of a new type of bond issue created with $15 billion in Federal stimulus funds targeted for recovery zones, according to bond attorney Denise Barkdall of the Ice Miller law firm.

The town approved $8.5 million of the funds allocated for Hendricks County to help companies to get lower interest rates on borrowing to build new plants. Niagara is responsible for the bond payments; the town and taxpayers have no financial obligation. However the town council did approve a package of property tax abatements for the building and equipment.

"One of the things that impressed us a great deal is that Niagara is buying, not leasing, the building with plans to grow. That says they are making a commitment," said Town Manager Rich Carlucci.

Niagara has faced legal disputes and lawsuits at its Groveland, Fla plant, where some residents balked at selling 500,000 gallons a day to the bottler when the region was facing in a drought.

Plainfield officials have long planned for companies like Niagara by beefing up the water and sewer systems to create a plentiful supply. The town already serves it own needs, sells up to two million gallons a day to Indianapolis and has about seven million gallons of daily capacity available, according to town officials.

Ind. Gov't - More on: "State no longer holds all cards"

CINCINNATI — Casinos and lotteries in most states are reporting a downturn in revenue for the first time, resulting in a drop in the money collected by state and local governments, according to new state data.

The decline comes as states are rapidly expanding gambling in hopes of stemming severe budget shortfalls, and it indicates that gambling is not insulated from broader economic forces like recessions, as has been argued in the past.

The drop has led some gambling experts to wonder whether the industry is reaching market saturation, whereby a limited number of gamblers with a fixed amount of money to bet is being split across a growing number of gambling options.

States that have been invested in gambling the longest have been hit hardest. Illinois reported a $166 million drop in tax revenue in fiscal year 2009, from 2008; Nevada had a $122 million drop, and New Jersey $62 million. * * *

“The data shows that states take a real chance in depending on gambling because this revenue is not likely to keep pace with growing budgetary needs,” said Lucy Dadayan, a senior analyst at the Nelson A. Rockefeller Institute of Government at the State University at Albany, which will release a report on the subject next week. * * * [ILB - here is the Institute - no sign of a report yet]

About 60 percent of people who participate in casino gambling have cut back on spending on the activity, according to a 2008 national survey conducted by the [American Gambling Association].

Despite the downturn, revenue from racinos grew this fiscal year, producing $2.9 billion in taxes and fees in 12 states compared with $2.7 billion the year before, a 6.7 percent increase.

But Ms. Dadayan of the Rockefeller Institute said the racino windfalls might be short-lived because slot profits usually soften with time as their novelty wears off and more states add machines.

If Pennsylvania and Indiana, where slots are new, are excluded, the total slot revenue from the other 10 states with racinos actually fell by $76 million in fiscal year 2009, a 4 percent decline.

The story includes these charts on changes in casino and lottery revenues.

Ind. Courts - More on: Supreme Court adds new Evidence Rule 617

Following up on yesterday's Fort Wayne Journal Gazette story (see latter part of this ILB entry),
Niki Kelly and Jeff Wiehe of the JG today have an expanded report, including:

The Indiana Supreme Court on Tuesday issued a new rule requiring electronic audio-video recordings of suspect interrogations before statements from the interviews can be entered into evidence in felony court proceedings.

The move came on a 3-2 vote of the court, and it surprised some in the legal field who thought the idea had lost favor.

"I didn’t think they were going to do it," Allen County Prosecutor Karen Richards said. "My basic problem is it’s giving the impression that police officers are untrustworthy in their rendition of an interview. That has implications."

But a majority on the court found the new policy is in the best interest of justice, adding Indiana to a growing number of states with similar rules. * * *

At least nine states have a law mandating the electronic recordings, and court decisions or rules in six other states require or strongly encourage the practice. * * *

The new rule applies only to statements made starting in 2011. The delay is due to a request by Marion County law enforcement to buy equipment, train officers and implement new policies.

The rule covers custodial interrogations in a police station or jail involving felony crimes and doesn’t cover statements made as a part of routine processing or booking.

Other exceptions to the rule include cases in which a suspect refuses to be electronically recorded, there is an equipment malfunction or the suspect makes a spontaneous statement not in response to a question.

Defense attorneys welcomed the news.

"Hallelujah," Fort Wayne attorney Nikos Nakos said. "I think that’s wonderful. That will certainly cut down on the trials, I believe, and it will make everyone’s job less difficult."

Defense Attorney Don Swanson was amazed by the court’s new rule but said it’s a positive move forward. He said that sometimes police take "literary license with what they hear."

Though the rule places a new mandate on police agencies, many departments are already equipped for the policy.

"All of our interrogations are on video and recorded," Kosciusko County Sheriff Rocky Goshert said, saying he worked with the prosecutor’s office to improve the system within the last year.

"I guess that’s what you call blind luck," he said. "It actually protects all officers from false allegations against them."

Several years ago, the Fort Wayne Police Department recorded interrogations only in homicide cases.

But Fort Wayne Police Chief Rusty York said that has been changed in recent years to include robberies and burglaries.

"What this could mean is that arrests, such as D-felony arrests, would require a videotaped interview or at least a reading of rights or attempt to make an interview," he said. "What we’re probably looking at, when we move to a new building, we’ve got a significant balance in our seizure funds to upgrade our recording capabilities."

York said the rule’s biggest effect could be on domestic battery or drunken driving cases, which are sometimes felonies.

Steve Johnson, director of the Indiana Prosecuting Attorneys Council, said the new rule will not save courts time but will simply shift arguments.

Instead of examining whether proper warnings were given and whether a confession was voluntary, he said, the arguments will be about whether a defendant refused a recording or whether a recording was accurate, complete and continuous.

Johnson was especially shocked at how the rule came to fruition. He said the Indiana Supreme Court asked the court’s Committee on Rules of Practice and Procedure to examine the idea in March. After several hearings on the topic, that committee voted 5-1 not to recommend the new rule, he said.

More than 300 attorneys, judges and law enforcement officials commented on the rule in recent months, and Johnson said 61 percent were against the rule.

Ind. Decisions - "Walmart, Sam's Club workers from '94 to March of this year are set to share up to $28M"

Nearly 300,000 Wal-Mart Stores workers in Indiana and their attorneys could receive up to $28 million under a settlement approved Tuesday in Marion Superior Court.

The settlement is the latest resulting from Wal-Mart's decision in December to resolve 63 class-action lawsuits that had been pending against the company for several years. The company agreed to pay from $352 million to $640 million to resolve all of the suits, including the one in Indiana.
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An attorney for the 290,171 Hoosier plaintiffs didn't return a call for comment.

However, the settlement affects all current and former hourly employees at Walmart and Sam's Club stores in the state from Oct. 17, 1994, through March of this year.

It's unclear how much each employee will get, but the total could range from $14 million to $28 million for the group.

The larger sum includes payments to attorneys as well as the plaintiffs. The attorneys -- including Indianapolis' James A. Knauer -- will receive about $9.7 million, according to court documents.

Tuesday, September 15, 2009

Environment - Updating "'Chicken underground' emerges in Indiana"

This Aug. 18th ILB entry quoted by an Indianapolis Star report on citizens "lobbying the Lafayette City Council to allow them to keep pet chickens at their homes in the historic Highland Park neighborhood." The story went on to report:

The Evansville Backyard Poultry Meetup Group is for people who have or are interested in small backyard flocks of chickens for pets, eggs, or meat.

You just might be surprised at how many people living in your neighborhood have pet chickens!

There is nothing quite like walking outside in the morning to gather fresh organic eggs for your breakfast!

We welcome everyone that has a small backyard flock of chickens, and those that are interested in getting started raising a small backyard flock of chickens.

Lafayette. The news is not so good for chicken lovers in Lafayette. Sunday the Journal Courier had this story by Amanda Hamon, headed "Urban chicken question up for discussion Monday." The story quoted the current Lafayette Code:

It shall be unlawful for a person to own, keep or breed a horse, pig, pony, mule, donkey, jackass, goat, chicken, peacock, turkey, cow, llama or other livestock in the city, however, the provisions of this section shall not apply to zoological parks, or bona fide circuses or carnivals.

Schafer and other proponents said chickens make wonderful pets and often are cleaner than dogs or cats. Gay-Ellen Stulp, who along with Stephany Miskunas began the chicken debate, argued they aren't proven to devalue property or pose health risks.

Heather Letizia, Miskunas' daughter, said she didn't agree with an ordinance that, as it stands, tells her what kind of pets people can and can't own.

"People are allowed to get tarantulas, people are allowed to get poisonous snakes," Letizia said. "Those are all legal and fine."

Kent Moore, a Highland Park resident who lives near Stulp and Miskunas, spoke against allowing chickens. He said he feared legal chickens would lead to more legal livestock and a slew of related problems.

"If you allow this, you're opening Pandora's box. What we say, and what we request, is no coops in the 'hood," Moore said, banging on the podium. * * *

After the meeting, Stulp said she was pleased with the level of civility during the arguments. She did not plan to appeal the decision.

"I had my opportunity to say what I thought was important," Stulp said. "This is democracy at its finest."

Indianapolis.

What of Indianapolis? I did some research and found that Sec. 531-104 and 105 prohibit keeping "swine, a horse, pony, mule, donkey, jackass, or llama." Chickens are not listed.

But wanting to be sure the Indianapolis city powers agree, and hoping to help avoid having a number of citizens individually trying to get answers, I checked with Jackie Nytes, my City County Councillor. She in turn checked with City Legal. Chris Cotterill, head of the Office of Corporation Counsel and a busy man, wrote back:

Councillor,

Ms. Oddi is correct that the City does not prohibit an individual from owning chickens. There are several provisions in the Revised Code, however, that limit the effect that these chickens could have on surrounding properties.

Chapter 531 of the Revised Code does not expressly address chickens. While certain types of livestock (swine, horses, donkeys, etc.) may only be kept upon compliance with certain conditions, there are no qualifications to owning a chicken. Because Chapter 531 does apply to all animals, however, the owner of a chicken would need to ensure that the animal is kept in compliance with that chapter. For instance, a chicken would need to be kept confined. Further, an owner would need to provide proper food, water, shelter with ventilation, and veterinarian care. Also, if the chicken was responsible for habitual or frequent vocalizations that would cause serious annoyance or disturbance to people in the vicinity, it could be declared a nuisance.

[Re a concern I expressed about zoning] On a residential property, the dwelling is considered that property’s primary use. Having chickens in this situation would be analogous to owning any other type of pet, which is not regulated by the zoning ordinances. If ownership of these chickens, however, turned into a more substantial (not incidental to the primary use) or commercial operation, the property owner could then be found in violation for a non-permitted accessory use or non-permitted home occupation.

Any construction associated with a chicken coop could also be subject to enforcement by the City. If a coop were more than 120 square feet, it would require an Improvement Location Permit. Depending on the type of coop built, a building or electrical permit could also be required. Moreover, a coop could also be subject to various development standards regarding side and rear yard setbacks.

In short, the limited type of chicken ownership described below would most likely be permitted in a dwelling district. Any person wishing to own a chicken, however, should be advised that the provisions of Chapter 531 will apply to them. Should you have any further questions regarding this issue, please do not hesitate to contact me.

I will ask Adam Collins of our office to assist, as he has just now become an expert on City/Chicken issues to help me with this.

I would consider this the definitive answer for Indianapolis. Thanks to all.

Environment - "Randolph County dairy fined over manure spill"

WINCHESTER -- Union-Go Dairy recently agreed to pay a $2,125 civil penalty for a manure release into Eight Mile Creek and to repair its 20-million-gallon manure lagoon and maintain it in good working order.

Neighbors have complained about giant bubbles in the lagoon's synthetic liner appearing above the surface of the lagoon.

On July 18, 2008, after manure had entered the creek, the dairy failed to report the spill to the Indiana Department of Environmental Management within two hours as required by Indiana law.

The dairy also agreed to demonstrate for six consecutive months that it consistently meets all conditions of its permit and spill-response requirements.

Within 45 days, the dairy also agreed to take actions to ensure that the lagoon liner is efficiently operated and maintained in good working order.

The manure release was unrelated to the problem with the lagoon liner.

The dairy's failure to meet milestone dates will subject it to fines of up to $1,250 a week.

Environmentally Concerned Citizens of Randolph County said last month that the group planned to appeal IDEM's decision approving an expansion of the dairy.

"While the dairy is required to build a new lagoon and repair the old one before expanding, our expert says that the plans for the new lagoon have major flaws," ECCRC reported in a newsletter.

In 2007, Union-Go paid a $5,000 civil penalty to IDEM to settle a complaint that it discharged manure into about two miles of Sparrow Creek.

Have a tongue piercing? Take it out, or there's no court for you, either.

Rules are on display outside Johnson Superior Court 3, and although the display is new, the rules are based on a common idea that hasn't changed: When you go to court, dress appropriately.

Other courts, such as Johnson Superior Court 1, follow the same philosophy, though they might not have written rules posted outside the courtroom.

"A courtroom is a serious place where serious things happen," Superior Court 3 Judge Lance Hamner said. Most people understand this and dress appropriately, he said.

Occasionally, someone will walk into court dressed like they are ready for a day at the beach, he said.

And one time, someone in court had a tongue ring and could hardly be understood, he said.

Hamner posted the rules in the courthouse so people would know of the expectations before going into the courtroom, he said.

He knows of some courts in other counties that do not post rules but where judges will kick people out if they aren't dressed appropriately.

Johnson Superior Court 1 doesn't have a set of written guidelines written, but the general rule is that people who come to court need to be dressed appropriately, Judge Kevin Barton said.

"It's obviously a subjective standard," he said.

Attorneys typically advise their clients about what is appropriate, and people generally have enough common sense to know what's appropriate, just as they know the difference between dressing for church and dressing for a rock concert, Barton said.

He's never had a problem with inappropriate appearance, except for once. He told a woman whose top was too revealing that the shirt was not appropriate for a courtroom, he said.

"There's a certain understanding that people have of how they are to dress and how they are to act," he said.

Law - Maintaining governmental emails in Boston and elsewhere

Last Sunday, Sept. 13th, Donovan Slack and Michael Levenson of the Boston Globereported under the headline "Boston Mayor Menino’s office acknowledges city employees routinely deleted e-mails." The story began:

Mayor Thomas M. Menino’s administration, prompted by public records requests from the Globe, has acknowledged that city employees were routinely deleting e-mails, a potential violation of the state public records law.

The acknowledgement came after the Globe filed several requests for e-mails sent and received by Menino’s Cabinet chief of policy and planning, Michael J. Kineavy. He is one of Menino’s most powerful and trusted advisers, intimately involved in nearly everything at City Hall, but a search of city computers found just 18 e-mails he had sent or received between Oct. 1, 2008, and March 31 of this year.

The unusually low figure prompted administration officials to question him about what happened to the rest of the e-mails he was presumably sending and receiving during that period. Kineavy, who is also one of the mayor’s chief political advisers and a strategist on Menino’s reelection campaigns since 1993, told them that he deletes all his e-mails on a daily basis, in such a way that they are not saved on city backup computers, administration officials said.

There are indications that Kineavy was not the only city employee who may have violated the law. * * *

Alarmed by the deletion of e-mails that could have contained potentially significant information, administration officials recently instituted a new electronic document retention policy and temporary “journaling’’ program, to keep copies of every e-mail sent and received by every city employee.

The city’s chief lawyer, William Sinnott, said the city is working on a more permanent fix. Sinnott also said problems with preserving e-mail are not unique to Boston. “E-mail retention is a challenge with which cities and towns throughout the country struggle,’’ he said. “Both the law and the technology in this area have been evolving and the city has made every effort to comply with the law as we understand it.’’

As technology brings electronic communications such as e-mail, text messaging and instant messaging into the mainstream of workday activity, governments from the federal down to the local levels are charged with evaluating how to treat those communications. Are they public records, subject to release just as any other record? Can the activity that occurs in those exchanges constitute a “meeting”? While new cases and legislation may specifically address these and related issues, many governments are still figuring out how to treat their electronic communications.

Environment - "Environmental groups to sue EPA over coal-ash ponds"

So reports James Bruggers of the Louisville Courier Journal in this story dated Sept. 14th that begins:

Three environmental groups have put the U.S. Environmental Protection Agency on notice that they intend to sue the agency, alleging it has failed to regulate water pollution from the nation’s electric utilities, including discharges into rivers and lakes from hundreds of coal-ash ponds.
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Defenders of Wildlife, the Sierra Club and the Environmental Integrity Project on Monday filed their notice of intent to sue the EPA — the first step in a federal lawsuit — alleging that EPA officials should have tightened their rules on power plant water pollution as far back as 1982.

At issue are the heavy metals and other toxic pollutants found in effluent from ponds that store electric utilities’ combustion wastes, such as ash, as well as scrubber sludge wastewater, and wastewater produced during the cleaning of cooling towers, said Jen Peterson, an attorney with the Environmental Integrity Project.

“Toxic discharges from power plants can threaten the health of local communities, contaminate ground and surface waters, and destroy aquatic life,” said the Environmental Integrity Project executive director Eric Schaeffer, a former high-ranking EPA enforcement official. “EPA needs to stop kicking the can down the road and set a date for regulation.”

He said the agency’s data shows that coal plants discharge millions of pounds of toxic pollutants like arsenic, mercury, selenium and lead, each year. Yet existing federal rules, which have not been revised since 1982, set no national limits on metals discharges, which can get into local water supplies and contaminate waterways, he said.

The EPA responded by saying it will announce “the way forward on standards for water discharges from coal-fired plants” on Tuesday, according to EPA spokeswoman Adora Andy.

The Sept. 9th Gary Post-Tribune had this story by Gitte Laasby headed "NIPSCO coal ash ponds unregulated: Ponds at Wheatfield haven't been inspected since construction in 1982." Some quotes:

NIPSCO is not aware of any safety inspections or monitoring subsequent to construction that was carried out under the supervision of a professional engineer," NIPSCO revealed in response to a survey on coal ash impoundments that the U.S. Environmental Protection Agency released Tuesday.

NIPSCO said neither state or federal authorities have -- or plan to -- inspect or evaluate the safety or structural integrity of the four impoundments at the R.M. Schahfer Generating Station in Wheatfield, about 20 miles south of Valparaiso.

The units hold a combined 888,000 cubic yards of coal ash, fly ash, boiler slag and gypsum on more than 100 acres of land.

Ind. Courts - "Albion lawyer suspended following 2007 jailhouse ruse"

An Albion-based attorney will have her law license suspended for at least one year because she tried to sneak a woman into a local jail to see her boyfriend, according to the Indiana Supreme Court.

Anna E. Fulkerson, 41, will begin her suspension Oct. 13 and will have to petition the Supreme Court to be reinstated. She could not be reached for comment late Monday afternoon.

In 2007, she tried to pass off one of her clients as her own private investigator – even using her own investigator’s name for the woman. From there, she was accused of sneaking the woman into a secure area of the Noble County Jail. The woman was caught and Fulkerson was charged with a felony count of aiding in identity deception.

She eventually pleaded to resisting arrest, a misdemeanor, as part of a plea agreement but apparently did not provide enough remorse for the satisfaction of the Supreme Court.

“In her memorandum addressing her misconduct, Respondent does not acknowledge that she lied about Former Client’s identity and attempted to get her into a secure area of the jail,” reads the Supreme Court’s decision to suspend Fulkerson. “Rather, she minimizes her misconduct, stating that she was accused of attempting to help Former Client visit the inmate in the visitor’s area.”

Ind. Courts - Supreme Court adds new Evidence Rule 617

The Indiana Supreme Court has amended the Indiana Rules of Evidence to prohibit evidence of a suspect's statement taken during police station questioning unless it was electronically recorded.

The new rule applies to statements made on or after January 1, 2011.

The rule, which was approved by majority vote, states in part, “In a felony criminal prosecution, evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made.”

A place of detention means a jail, law enforcement agency station house, or facility owned and operated by law enforcement. An electronic recording means an audio-video recording. The exact definitions for “place of detention” and “electronic recording” can be found in Rule 617..

There are seven exceptions to the rule which can be found online as well. Generally, the exceptions include the following:

1. statements made as a part of routine processing or “booking”
2. statements made when the suspect does not agree to be electronically recorded
3. when there is an equipment malfunction
4. when the interrogation takes place in another jurisdiction
5. when law enforcement officers reasonably believe the crime under investigation is not a felony
6. the statement made is spontaneous and not in response to a question
7. substantial exigent circumstances exist which prevent the recording

The rule change is aimed at helping police, prosecutors, courts and juries in their search for truth, justice, and due process of law. As the Supreme Court order amending the rule details, a complete audio video recording, which captures the voice, facial expressions and body language of the suspect and interrogator can be a valuable tool for law enforcement, courts, and citizens. The electronic recording can provide strong evidence of guilt, confirm police gave suspects all required warnings, and ultimately lead to more guilty pleas. The recordings are also likely to lessen factual disputes in court and reduce the number of motions to suppress evidence.

Note that the Order was adopted 3-2, with J. Sullivan and C.J. Shepard dissenting with opinions.
Surprising Move. Niki Kelly of the Fort Wayne Journal Gazette has quickly posted this story on the Order, headed "Audio-video recordings to be required in Indiana felony cases." From the story:

INDIANAPOLIS – The Indiana Supreme Court on Tuesday issued a new rule requiring electronic audio-video recordings of suspect interrogations before statements from the interviews can be entered into evidence in felony court proceedings.

The surprising move came on a 3-2 vote of the court.

"Electronically recorded interrogations are a potent law enforcement tool," the court order on the new rule said. "Confessions provide strong evidence of guilt, but often suspects make incriminating statements but later claim that police failed to give them required warnings or otherwise engaged in unlawful behavior."

But Supreme Court Chief Justice Randall T. Shepard dissented, saying that Indiana has not had problems with bad conduct by police and prosecutors.

"My assessment of the honesty and professionalism of Indiana's public safety officers leads me to conclude that today's action is not warranted," he said.

The court reviewed more than 300 comments submitted on the rule and included several exceptions to address some of the concerns.

The new rule applies only to statements made starting in 2011 – a delay given due to a request by Marion County law enforcement to buy equipment, train officers and implement new policies.

Courts - "Bowman on the Supreme Court's Sentencing Jurisprudence"

Legal Theory Blognotes that "Frank O. Bowman III (University of Missouri School of Law) has posted Debacle: How the Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended." A few snippets from the abstract:

This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continued in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. * * *

The Article provides a comprehensive constitutional analysis of all the opinions in the McMillan-Apprendi-Blakely-Booker-Ice line, as well as an assessment of the practical impact of these cases on both federal and state sentencing systems.

In addition, the article uses its careful dissection of the defects in the Court’s Sixth Amendment sentencing decisions to develop an alternative constitutional analysis that combines Sixth Amendment and due process principles.

Finally, the article suggests that the elevation of Judge Sonia Sotomayor to the Supreme Court may provide the occasion for the Court to rethink its sentencing cases and move toward a more intellectually coherent and practically desirable constitutional sentencing jurisprudence.

Ind. Courts - "Arguments today in Central Library appeal"

As noted in this ILB entry Monday, today at 9:00 AM the Supreme Court heard oral arguments in the Central Library appeal. The Indianapolis Star gave a preview in this morning's paper.

In another Star story today, Will Higgins reports under the heading "Library to get more computers." Some quotes:

The banks of public access computers at Indianapolis-Marion County Central Library and the system's 22 branches -- and at libraries across the country -- are increasingly packed with people searching online employment Web sites, polishing their online resumes and filing their unemployment insurance claims.

The Indianapolis-Marion County Public Library, where lines are commonplace, has bought 81 new computers and hopes to have them installed by November. The library then will have 619 computers available for patrons to use.

"Well, that's good because this place is a lot busier than when I started coming a year ago," said Vanessa Simpson, 49, an out-of-work nursing assistant who waited about 20 minutes for one of the 35 computers in Central Library's computer lab to become available.

Just as people turn increasingly to public libraries for services, libraries across the country are facing funding declines, the report found.

Indianapolis library officials obtained the $187,000 for its 81 new computers by appealing to the City-County Council for funds it was shorted in 2005 and 2006.

But IMCPL's operations funding, which comes primarily through property taxes, is $650,000 lower than a year ago. And next year, according Rebecca Dixon, the library's chief financial officer, the shortfall will approach $3 million.

"These funding declines have the potential to seriously handicap the advances in public computing that libraries have made over the last five years," the report concluded.

The Central Library is very busy, I go there several times a week. Fontunately I am there for other reasons and don't have to wait to use a computer, but people are waiting not only to file their unemployment insurance claims, but to make FSSI-related applications. Ironically, as the state level of government has automated its programs, making them "computer accessible," the recipients, who frequently do not have computers, or do not understand how to make this or that application, must turn to their local library for help.

Monday, September 14, 2009

Updating this ILB entry from April 27th, SCOTUSBlog today selects the 7th Circuit decision Choose Life Illinois, Incorporated, et al. v. White, Illinois Secretary of State as among those cases up for consideration at the Justices’ opening conference of September 29 that SCOTUSBlog believes has a reasonable case of being granted.

Here is the complete list, the cases are listed by docket number and the Illinois case is next to last.

Ind. Courts - More on: "Time might not be on Delaware County Prosecutor Mark McKinney's side"

Supporters of the beleaguered prosecutor are presumably praying the Indiana Supreme Court acts soon on a proposed deal -- stemming from a disciplinary complaint filed by Mayor Sharon McShurley -- that calls for McKinley's license to practice law to be suspended for 90 days.

It's been 111 days since that proposed settlement was submitted to the Supreme Court for its consideration.

If the court does not act in the case in the relatively near future -- and presuming it accepts the 90-day suspension, now seen as a best-case-scenario for McKinney -- the prosecutor could face the grim prospect of mounting a re-election campaign while under a suspension.

"Time might not be on Delaware County Prosecutor Mark McKinney's side" for sure, according to this document released today by the Indiana Supreme Court. It is dated June 18th and reads:

Please be advised that a majority of the Indiana Supreme Court has voted to reject the "Statement of Circumstances and Conditional Agreement for Discipline" tendered in this case.

Specifically, a majority of the Court concluded that the agreed discipline, that being suspension from the practice of law for 90 days with automatic reinstatement, is insufficient in light of the misconduct agreed to by the parties.

Ind. Decisions - Transfer list for week ending September 11, 2009

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the May 22nd list.

Over 5 1/2 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Ind. Law - It's the Law: "Golf carts limited to city, town streets"

Ken Kosky's "It's the Law"column in the NWI Times this week examines Indiana's new golf cart law:

Golf courses are no longer the only places where golf carts are seen zipping around. An increasing number of people use them on roadways instead of cars or trucks.

That's why an Indiana law, effective July 1, limits golf cart use to cities and towns, and only if the cities or towns pass a local ordinance to allow golf carts.

The law states:

-- A driver must be at least 16 years old and have a valid driver's license.

-- Operating a golf cart on any roadway, including county and state highways, is unlawful, unless it is in the jurisdiction of a city or town that has passed an ordinance permitting it. A gated community may also permit golf carts if their roads are privately maintained.

-- If a golf cart is operated on a highway when there is no ordinance permitting it, all vehicle laws apply -- including licensing, plates and equipment.

-- Golf cart operators must obey all laws.

-- Counties can't legalize golf cart use on county highways.

Valparaiso and Portage police both said they don't currently have an ordinance to address golf carts, but Chesterton Police Chief George Nelson said one is in the works to allow golf carts in the town.

"The people that use golf carts are people that have some mobility issues and are on fixed incomes and are trying to go to stores and around neighborhoods, and to get out without having to drive a car and spend gas money," Nelson said.

Nelson said there are also some people who live near golf courses who ride a cart to the course to play.

Valparaiso police Sgt. Michael Grennes said he believes Indiana law is addressing golf carts because there are so many in use in some communities, especially lake or resort communities. He said police rarely see golf carts being used in Valparaiso, so it hasn't been much of an issue. Portage police Sgt. Keith Hughes said Portage police also haven't had any problems with golf carts.

Other recent golf cart stories:

"Golf carts currently illegal on Town of Chesterton roadways"reports Luke Nevers in the Sept. 10th Chesterton Tribune:

At Wednesday’s meeting of the Police Commission, Police Chief George Nelson told members that a change in Indiana Code which took effect on July 1 effectively forbids the use of any golf cart on a municipal right-of-way unless that municipality has enacted an ordinance specifically allowing the use of golf carts.

The issue was raised at the meeting from the floor by Paul Tharp, a golf cart user himself, who noted that he’d seen a story in the Chesterton Tribune to the effect that state law now bans golf carts on municipal rights of way unless local code has been amended to provide for them. Has local code been so amended? Tharp asked Nelson.

It has not been, Nelson replied, although at his request Associate Town Attorney Chuck Parkinson is currently at work researching the issue.

Tharp observed that a number of residents--prior to July 1--used golf carts to travel through town and save gas costs, and that a business in town sells golf carts.

“The main problem we have is that not everybody is as conscientious as you,” Nelson told Tharp. “I know your golf cart is basically safe. And I know you operate it safely.”

Nelson said that Indiana Code formerly defined golf carts as low-speed vehicles and permitted their use on municipal rights-of-way so long as they met certain conditions. As of July 1, however, that law dropped golf carts from the low-speed vehicle definition.

Nelson added that, so far as he knows, no citations or warnings have been issued to residents since July 1 for violations of the new law.

[Sept. 15th update] "Golf carts legal once again on town roads" reported the Chesterton Tribune on Sept. 15, in a story that began:

It was illegal to operate golf carts on Town of Chesterton public rights-of-way for exactly 76 days.

As of 7:30 p.m. Monday, it became legal again.

At its meeting Monday night, the Town Council voted 4-0 to approve on first reading an ordinance making golf carts street-legal, 4-0 to suspend the rules, then 4-0 to approve that ordinance on final reading. Member Jeff Trout, R-2nd, was not in attendance.

"Golf Carts May Become Street Legal In Crothersville" is the word from this report in the Sept. 9th Crothersville Times:

Golf carts as an affordable and more environmentally “green” in-town mode of transportation may get the green light from the Crothersville Town Council.

Golf cart proponent Kelly Schmelzle kept the issue in front of the council for a second straight month when they met Sept. 1. She presented ordinances from other communities for allowing the vehicles off the fairway and onto public streets. “This would help some our elderly go to the grocery and run errands. And it will save on gasoline,” said Schmelzle.

At the August meeting, councilman Bill Nagle expressed his opposition to the plan based on police concerns about safe operation of golf carts. However, Nagle’s opposition has apparently changed as he indicated that perhaps golf carts on town streets is an idea that is growing in other communities.

Council president Ardell Mitchell said the ordinance would be aimed at golf carts only, not ATV’s or side-by-side seating utility vehicles such as John Deere Gators or Kawasaki Mules. “We are only talking about golf carts. And they would have to have those safety items added to make them safe on the street,” said Mitchell.

He directed town attorney Travis Thompson to have a proposed draft of an ordinance ready for the council’s special meeting on Tuesday, Sept. 15.

Councilwoman Karen Mains added, “Our police department should have a very heavy hand in developing the rules for operating golf carts in Crothersville as well as the enforcement of those rules.”

A lawsuit challenging how Alaska chooses its judges was thrown out of federal court Friday.

U.S. District Judge John Sedwick issued a brief order from the bench dismissing the suit. He said a written order would follow, likely next week.

The lawsuit claimed lawyers have too much say in picking Alaska judges. It was brought on behalf of Kenneth Kirk, an Anchorage lawyer who has applied for judgeships but never been nominated, as well as two other Alaskans, Michael Miller and Carl Ekstrom, who contend they don't get enough say in the matter.

The state countered that lawyers deserve an elevated role because of their special knowledge and that there's no requirement for judges to be elected or for those involved in selecting judicial candidates to be elected.

Under a system modeled after Missouri's and adopted after the constitutional convention more than 50 years ago, the Alaska Judicial Council nominates at least two candidates from a list of applicants for each open judgeship. The governor makes the appointment from those nominated.

Judges then are listed periodically on the election ballot and either retained or thrown out by voters.

The Alaska Judicial Council includes three lawyers appointed by the Alaska Bar Association board of governors; three non-lawyers appointed by the governor; and the chief justice of the state Supreme Court, currently Walter Carpeneti. * * *

The lead lawyer for the plaintiffs was James Bopp of Indiana, general counsel for the James Madison Center for Free Speech. He has expertise in election law but is also general counsel for the National Right to Life Committee and has made abortion cases a key element of his practice. He has said that Alaska court decisions on abortion were not a factor in filing the lawsuit.

Bopp argued that lawyers on the council shouldn't be able to nominate judicial candidates unless they themselves are appointed to the Judicial Council by someone who is elected, such as the governor, or unless the Alaska Bar Association changes its board to one that is elected.

There's no proof that lawyers are better at choosing judges than everyone else, yet they have a special privilege, he said. Bopp told Sedwick that if his side loses, the bar association could "flat out select all the judges," amassing power like Iranian mullahs.

[Judge] Sedwick rejected Bopp's hyperbole and told him to stick to what the law actually says.

Environment - Several recent environmental stories

Sunday, Sept. 13th the NY Times had a major front-page story that continued on to two full inside pages: "Toxic Waters: Clean Water Laws Are Neglected, at a Cost in Suffering." Some quotes:

Almost four decades ago, Congress passed the Clean Water Act to force polluters to disclose the toxins they dump into waterways and to give regulators the power to fine or jail offenders. States have passed pollution statutes of their own. But in recent years, violations of the Clean Water Act have risen steadily across the nation, an extensive review of water pollution records by The New York Times found.

In the last five years alone, chemical factories, manufacturing plants and other workplaces have violated water pollution laws more than half a million times. The violations range from failing to report emissions to dumping toxins at concentrations regulators say might contribute to cancer, birth defects and other illnesses.

However, the vast majority of those polluters have escaped punishment. State officials have repeatedly ignored obvious illegal dumping, and the Environmental Protection Agency, which can prosecute polluters when states fail to act, has often declined to intervene.

Because it is difficult to determine what causes diseases like cancer, it is impossible to know how many illnesses are the result of water pollution, or contaminants’ role in the health problems of specific individuals.

But concerns over these toxins are great enough that Congress and the E.P.A. regulate more than 100 pollutants through the Clean Water Act and strictly limit 91 chemicals or contaminants in tap water through the Safe Drinking Water Act.

Regulators themselves acknowledge lapses. The new E.P.A. administrator, Lisa P. Jackson, said in an interview that despite many successes since the Clean Water Act was passed in 1972, today the nation’s water does not meet public health goals, and enforcement of water pollution laws is unacceptably low. She added that strengthening water protections is among her top priorities. State regulators say they are doing their best with insufficient resources.

The Times obtained hundreds of thousands of water pollution records through Freedom of Information Act requests to every state and the E.P.A., and compiled a national database of water pollution violations that is more comprehensive than those maintained by states or the E.P.A.

In addition, The Times interviewed more than 250 state and federal regulators, water-system managers, environmental advocates and scientists.

That research shows that an estimated one in 10 Americans have been exposed to drinking water that contains dangerous chemicals or fails to meet a federal health benchmark in other ways.

Those exposures include carcinogens in the tap water of major American cities and unsafe chemicals in drinking-water wells. Wells, which are not typically regulated by the Safe Drinking Water Act, are more likely to contain contaminants than municipal water systems.

Stephanie Gattman of the Elkhart Truth has an interesting story on the choices presented by an offer of free hookups to city water to residents near a Superfund site. Some quotes:

ELKHART -- You live just outside a plume of contaminated groundwater coming from a Superfund site. You're offered a chance to hook up to city water for free, but you know eventually you'll have to pay the bills.

What do you do?

a) Accept the offer. You're not taking any chances with the contamination plume moving toward you in the future. There are other benefits, too.

b) Let them put the water lines to your home, but not turn on the water. You don't want to give up your private well.

c) Nothing. You're not concerned about contamination.

Those are real decisions being made right now just west of the city limits in the HIMCO Superfund site.

So far, 23 homeowners on Westwood, Northwood and Plainfield drives have signed compacts with the city to hook up to city water because of contamination coming from the HIMCO Superfund site on C.R. 10 and John Weaver Parkway. * * *

Of the homeowners who have not agreed to hook up, del Rosario said one of the biggest issues is that they don't want to cap their existing well, a state and local requirement when connecting to city water. Cost and compensation are other issues. Some homeowners recently installed new wells.

John Hulewicz, Elkhart County's environmental health supervisor, said individuals do have a choice whether to hook up, but he said he doesn't see the argument against it. "Personally, I would rather hook up to city water and know that I'm protected from past contamination issues and any future contamination issues," he said. "In Elkhart County it's not like we're at a loss for problems when it comes to groundwater contamination issues."

John and Janina Haines live on Northwood Drive in a vein of contamination and they've decided to connect. They need a new well anyway, John said, but he also sees other benefits. "We're going to get fire hydrants, which should make our insurance a little less," he said.

Based on these facts, it is clear that Patrick witnessed the death of a loved one, a death caused by the negligent conduct of health care providers. As a result, we find that the trial court properly concluded that Patrick, as a bystander pursuant to Groves, could bring an independent claim for the negligent infliction of his emotional distress upon Christopher's death.

In this appeal, we consider as a matter of first impression for this Court whether a casino—a gambling enterprise that owes its existence to, is regulated by, and is a source of revenue for the State of Indiana—has a common law duty to refrain from enticing to its premises a known pathological gambler who has not requested that she be removed from the casino's direct marketing list or excluded from the casino. The majority concludes that no such duty exists. I respectfully disagree.

"In light of the foregoing, the Estate failed to present sufficient evidence that Ford or TRW breached a duty of reasonable care. Accordingly, the negligence claim must fail and the jury verdict is reversed. Reversed." The dissent, beginning on p. 24, concludes: "In sum, based upon the standard of review and the evidence before me, I find that the Estate presented sufficient evidence from which the jury could reasonably conclude that a safer and feasible alternative to the conventional seatbelt was available that would have cost-effectively improved aggregate safety in all types of crashes."

Indiana Code § 35-48-4-1(b)(3)(B) elevates dealing in cocaine or narcotics to a class A felony if the transaction occurs within 1,000 feet of, among other things, school property. The purpose of this statute is to protect children. Similarly, the General Assembly sought fit to provide a defense that the defendant was only briefly within 1,000 feet of school property and no children were present when the transaction took place, thereby lowering the offense to a class B felony, because the reason for the harsher penalty – presence of children or a significant risk thereof – did not exist.

Gabino Gonzalez drove his pickup truck into a school bus while intoxicated. A jury found him guilty of criminal mischief and operating while intoxicated. Before his trial, while he was attempting to negotiate a guilty plea, Gonzalez wrote a letter to the school corporation in which he apologized for the accident and admitted he had been drinking that day. The trial court allowed the State to enter that letter into evidence. Gonzalez argues on appeal that was error because the letter was hearsay and because a letter written as part of guilty plea negotiations is inadmissible at a trial. The letter should not have been admitted and the error was not harmless. We accordingly reverse and remand for a new trial.

Kevin Varner, an inmate at Plainfield Correctional Facility, filed a pro se action for mandate requiring the Indiana Parole Board (the “Board”) to determine his parole eligibility based on a vote of all five Board members. The trial court summarily dismissed that action, either for lack of subject matter jurisdiction or pursuant to Indiana Code section 34-58-1-2(a), a statute requiring trial courts to prescreen the legal sufficiency of claims filed by pro se prisoners such as Varner. On appeal, Varner contends the trial court’s summary dismissal was improper because the relief he seeks – a five-member vote to determine his parole eligibility – is mandated by Indiana Code section 11-13-3-3(b).

Gay and lesbian couples from Indiana can get married in more places than ever, but they could face a legal dilemma after they return home.

If the relationship sours, the lack of recognition for such unions in Indiana law presents couples with a classic Catch-22: They can't obtain a divorce in their home state because their marriage is void here, and they can't easily seek one where they were married because of residency requirements for divorce.

A Marion County court recently denied a divorce for a Hoosier couple because of the state's ban on same-sex marriages, creating an unresolved issue that could cause trouble if either decides to enter into a new marriage. * * *

In addition to Canada, half a dozen U.S. states -- including Iowa and most of New England -- already allow same-sex marriage or have new laws pending. Nine others and the District of Columbia have approved alternative arrangements, such as civil unions and domestic partnerships, offering a range of state-level spousal rights to such couples.

A 1997 Indiana law defines marriage as between a man and a woman and bars recognition of same-sex marriages from other states. Courts have fielded few divorce petitions from same-sex couples so far, but gay-rights advocates and family law lawyers say the situation is sure to become more common as Hoosier couples travel to states allowing such unions. * * *

Courts in other states have similarly dismissed divorce petitions from same-sex couples married elsewhere. In Rhode Island, which recognizes same-sex marriages from neighboring Massachusetts but doesn't grant them, the state Supreme Court ruled nonetheless that the state courts couldn't issue divorce decrees.

Rhode Island's legislature this year considered -- but has not approved -- a fix that advocates also suggest as a tweak to divorce laws in states such as Indiana that ban same-sex marriage: Recognize a marriage or partnership just long enough to end it.

Opponents of same-sex marriage, including the Indiana Family Institute, would resist such a move because, they say, it would undermine the ban on same-sex marriages. They have sought unsuccessfully to upgrade Indiana's ban from a law to a state constitutional amendment. * * *

Each state sets its own definition of marriage while generally recognizing marriages solemnized in other states, but the 1996 federal Defense of Marriage Act allows states to deny recognition to other states' same-sex unions.

Marion Superior Court Commissioner Jeffrey Marchal expressed sympathy for the couple's practical concerns, but the order issued Sept. 4 said state lawmakers had not given the courts authority to dissolve same-sex marriages in Indiana's divorce laws.

"As the state of Indiana has chosen to prohibit same-sex marriage as a matter of public policy, it might logically follow that Indiana would have a policy interest in granting same-sex divorce," says the order, signed by Marchal and Judge Heather Welch, who presides over that courtroom. * * *

Marchal said his hand was tied by the law, but he did include a declaration in the order that their marriage is "null and void" in the hope they can show it to officials in another state if the need arises.

Ind. Gov't. - More on: Some upcoming legislative committee meetings

Updating yesterday's ILB entry, which focused on issues being examined at the upcoming meetings of the legislative interim Commission on Courts and the Regulatory Flexability Committees, here are two stories today that supplement the entry:

The Indianapolis Star has this editorial today on the surprise special session change to the law relating to the placement of children in out-of-state rehabilitation and treatment programs. Some quotes:

Even given the wacky nature of this year's installment of the Indiana General Assembly, there can be no excuse for changing child-placement law via last-minute insertion in a budget bill.

Authority over out-of-state care for troubled youngsters is an ongoing issue with passionate involvement by many parties. It deserved full-blown debate.

Instead, the state Department of Child Services sought and got what it wanted. Having lost an appeal to the Indiana Supreme Court, resulting in enhanced discretion for local judges in out-of-state placements, DCS Director James Payne went to the legislature and won for himself the final say. Now, local courts can order out-of-state placements in defiance of DCS; but they have to pay the cost out of their own stressed budgets, making the option pretty much moot. * * *

What is lost with the law change is a third-party referee -- the appeals courts -- that can untangle disputes between counties and the state, such as the one that arose over a Madison County teenager and resulted in the Supreme Court loss for DCS. Even if DCS pays the bills and deems itself the proper determiner of children's best interests, most citizens would prefer to have a check on any state agency's power.

In yesterday's entry the ILB wrote: "Construction Work in Progress (CWIP)" was a major issue in the Marble Hill debate in the early 1980s." Mike Smith of the AP has a story today subtitled "Lawmakers will debate when to let utilities pass on building costs." Some quotes:

There are no nuclear power plants in Indiana, but lawmakers are expected to wrestle next year with whether to offer an incentive that could boost prospects for building reactors in the state.

Members of the legislature's Regulatory Flexibility Committee are scheduled to discuss nuclear energy in Indiana on Sept. 22, and the panel's co-chairmen -- Rep. Win Moses, D-Fort Wayne, and Sen. James Merritt, R-Indianapolis -- already have staked out opposing positions.

The debate centers on whether utilities should be able to charge customers for the cost of building a nuclear plant as soon as construction begins, rather than having to wait until the reactor is operating. Current state law allows only utilities building so-called "clean coal" power plants -- those that release less carbon dioxide -- to charge customers for construction that is still in progress. * * *

Moses pointed to Public Service Co. of Indiana's failed effort to build a nuclear plant near Madison in southeastern Indiana. [ILB - This was Marble Hill] PSI told stockholders in 1973 the plant would cost $793 million, but after a decade that saw double-digit inflation, construction delays, intensified federal regulation and high interest rates, the estimate soared to $7 billion.

A task force appointed by then-Gov. Bob Orr recommended in 1983 it be canceled and PSI not be allowed to recover its costs from customers. PSI, which eventually merged with Cincinnati Gas & Electric Co. to form Cinergy Corp., abandoned the project in 1984 after spending more than $2 billion. Moses said the utility and its stockholders had to eat the costs.

Merritt said allowing utilities to recover costs from rate payers while building nuclear plants would be a "powerful incentive" for establishing them in Indiana. He supports the position of the Nuclear Energy Institute, which considers nuclear energy a source of clean-air, carbon-free electricity.

Ind. Courts - Judge David Hamlton's still-pending nomination is focus of New Yorker story

Jeffrey Tobin has a very long article in the upcoming (Sept. 21st) issue of The New Yorker, titled "Bench Press: Are Obama’s judges really liberals?." Some quotes:

The Obama Administration wanted to send a message with the President’s first nomination to a federal court. “There was a real conscious decision to use that first appointment to say, ‘This is a new way of doing things. This is a post-partisan choice,’ ” one White House official involved in the process told me. “Our strategy was to show that our judges could get Republican support.” So on March 17th President Obama nominated David Hamilton, the chief federal district-court judge in Indianapolis, to the Seventh Circuit court of appeals. Hamilton had been vetted with care. After fifteen years of service on the trial bench, he had won the highest rating from the American Bar Association; Richard Lugar, the senior senator from Indiana and a leading Republican, was supportive; and Hamilton’s status as a nephew of Lee Hamilton, a well-respected former local congressman, gave him deep connections. The hope was that Hamilton’s appointment would begin a profound and rapid change in the confirmation process and in the federal judiciary itself. * * *

But then, as the first White House official put it, “Hamilton blew up.” Conservatives seized on a 2005 case, in which Hamilton ruled to strike down the daily invocation at the Indiana legislature because its repeated references to Jesus Christ violated the establishment clause of the First Amendment. Hamilton had also ruled to invalidate a part of Indiana’s abortion law that required women to make two visits to a doctor before undergoing the procedure. In June, Hamilton was approved by the Judiciary Committee on a straight party-line vote, twelve to seven, but his nomination has not yet been brought to the Senate floor. Some Republicans have already vowed a filibuster. (Republican threats of extended debate on nominees can stop the Democratic majority from bringing any of them up for votes.)

“The reaction to Hamilton certainly has given people pause here,” the second White House official said. “If they are going to stop David Hamilton, then who won’t they stop?”

Republicans in the Senate have not allowed a vote on any of the other nominees, either. So far, the only Obama nominee who has been confirmed to a lifetime federal judgeship is Sotomayor. The stalemate provides a revealing glimpse of the environment in Washington. Obama advisers (and Democratic Senate sources) aver that all the nominees, even Hamilton, will be confirmed eventually, but contrary to the President’s early hope the struggle for his judges is likely to be long and contentious. * * *

Last week, after a long delay, [Cass] Sunstein was confirmed as director of the Office of Information and Regulatory Affairs in the Office of Management and Budget. Dawn E. Johnsen, another contributor, has been waiting for months for a Senate vote on her nomination as an assistant attorney general. Harold Hongju Koh, who was the dean of Yale Law School and another writer in the collection, was recently confirmed, also after a long delay, as legal adviser to the State Department. The trouble that these outspoken academics have had in winning confirmation for Administration posts offers another augury of major battles ahead if Obama nominates any of them, or anyone like them, for judgeships.

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 9/14/09):

Tuesday, September 15th

9:00 AM - Indianapolis Marion County Pub. Library v. Charlier Clark & Linard, P.C. - When the Library brought negligence claims against engineering subcontractors involved in the construction of a new parking garage, the Boone Circuit Court entered an order granting the subcontractors summary judgment, concluding that such claims were precluded by the “economic loss” doctrine. The Court of Appeals affirmed. Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 900 N.E.2d 801 (Ind. Ct. App. 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [For background, start with this July 25th ILB entry.]

9:45 AM - Gloria A. Murray v. City of Lawrenceburg - Plaintiffs, who are various persons claiming an interest in a small parcel of land underneath the docking site of a riverboat casino, filed a six-count complaint against the owner of the casino, the City of Lawrenceburg, and the Lawrenceburg Conservancy District. The trial court denied Defendants’ motion for judgment on the pleadings, and also denied Plaintiffs’ demand for jury trial. On interlocutory appeal, the Court of Appeals affirmed the denial of Defendants’ motion for judgment on the pleadings, held that Plaintiffs were entitled to jury trial on some of their six counts, and remanded with instructions to resolve the timeliness of Plaintiffs’ claims. Murray v. City of Lawrenceburg, 903 N.E.2d 93 (Ind. Ct. App. 3/19/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Note: Here is the ILB summary of the 2-1 COA opinion.]

Next week's oral arguments before the Supreme Court (week of 9/21/09):

This week's oral arguments before the Court of Appeals (week of 9/14/09):

None currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 9/21/09):

Wednesday, September 23rd

5:00 PM - Thomas v. FSSA - Thomas and Dausman have brought this action for declaratory judgment and injunctive relief, asking that the state mental health institution where they are both held be ordered to place each man in the least restrictive environment appropriate for his continued care and rehabilitation under Indiana statute, claiming that the institution's failure to do so constitutes a violation of each man's rights under Indiana law and the United States Constitution. The State has responded that this action is not ripe for review because less-restrictive placement has not yet been recommended by state mental health authorities and that the state institution is the least restrictive placement option that offers competency restoration services, that the issuance of a declaratory judgment or injunction is impermissible under the separation of powers doctrine contained in the Indiana Constitution and that the State's actions regarding Thomas and Dausman comply with both Indiana law and the United States Constitution. The Marion Superior Court agreed with the State's position and entered summary judgment for the State and against Thomas and Dausman. The Scheduled Panel Members are: Judges Kirsch, Mathias and Riley.
[Where: Wynne Courtroom at IU-Indy Law - WEBCAST (not sure)]

[Note: The ILB hopes to obtain the briefs in this case. Update: They are now posted here.]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The debate likely will focus on whether state law should allow utilities that win approval to build nuclear reactors to charge rate payers before the reactor is operating.

Ths is called "Construction Work in Progress (CWIP)" and was a major issue in the Marble Hill debate in the early 1980s. A rationale for its use is to prevent "rate shock," the large increase in electrical prices that occurs when a massive new electricity generating plant enters the rate base. Other alternatives to address rate shock may include joint ownership, smaller plants, rating trending, and economic depreciation. I mention this because it has been many decades since Marble Hill's construction was halted; at the time CWIP was a phrase used in everyday conversation.

Jesse McKinley reports today in the NY Times in a story that includes the following:

SAN FRANCISCO — Come November, Washington State voters will be the latest electorate to grapple with how much recognition to give gay couples when they take up Referendum 71, which will either affirm or reject a recently passed domestic-partnership law that affords the couples almost all the same rights as married ones.

But whether anyone will know who signed the petitions putting the measure on the ballot is an open question. A federal district judge in Tacoma ruled on Thursday that state officials were not allowed to reveal the names of some 120,000 Washington residents who supported it.

The ruling by the judge, Benjamin H. Settle, granted a preliminary injunction against the secretary of state banning release of the names, which had been requested under a state public records law. In his decision, Judge Settle said that the signing of a petition was essentially an act of anonymous — and protected — political speech, and that the identity of who signed a petition “is irrelevant to the voter.”

The case is the latest filed by a conservative lawyer, James Bopp Jr., seeking to stop the publicizing of the names of those who oppose same-sex marriage and other gay rights initiatives. In January, Mr. Bopp argued — unsuccessfully — for a preliminary injunction protecting the names of the donors behind Proposition 8, which outlawed gay marriage in California. The donors names were released, though Mr. Bopp continues his legal challenge.

Judge Settle’s decision was criticized by both the Washington secretary of state, Sam Reed, and the attorney general, Rob McKenna, who called it an affront to the state’s public record law and the idea of open government.

“In all states with initiative or referendum systems, the ballot measure represents the people substituting themselves for legislatures,” said Mr. McKenna, who said he planned to appeal to the United States Court of Appeals for the Ninth Circuit, in San Francisco. “We don’t conduct legislative process in secret, and it doesn’t make sense to conduct this legislative process in secret either.”

Mr. Bopp said his intention was not to cloud the law-making process but to protect petition signers from an effort by “the gay rights lobby” to “harass and intimidate supporters of traditional marriage.”

“We’re not talking about removing the transparency of government,” Mr. Bopp said. “We’re talking about whether citizens should be outed in their participation in our democracy."

Settle's decision alarmed state officials and some public-records advocates, who said that the judge misinterpreted Supreme Court precedent and that the decision could eviscerate open government laws.

The Washington state attorney general's office says it will appeal the decision.

R-71 asks voters whether to approve or reject a recently passed state law granting marriage-like benefits to same-sex couples who are registered domestic partners. The law also applies to heterosexual couples where one partner is at least 62.

Protect Marriage Washington, a consortium of religious conservative groups and individuals opposed to domestic-partner benefits, filed a lawsuit seeking to block release of the names of those who signed petitions to get R-71 onto the November ballot.

The secretary of state's office — the defendant in the case — has said it is obligated under the state Public Records Act to release the petitions to those who request them.

But Protect Marriage argued that the law "chills free speech ... particularly when it is reasonably probable that those exercising their First Amendment rights would be subjected to threats and harassment." * * *

In suggesting that people have a right to participate anonymously in the political process, the judge cited Supreme Court opinions that said Colorado could not force signature gatherers to wear identification badges, Ohio could not require that campaign literature bear the name and address of the person circulating that literature and California could not require "any handbill under any place under any circumstances" to bear the name of the person who prepared it.

All of those affirmed the right of people to remain anonymous in their dealings with the public — in effect, their right to speak from a soapbox without identifying themselves. But that doesn't mean people have a right to be anonymous in their dealings with the government, especially when they sign a petition seeking to put an initiative or referendum on the ballot, Earl-Hubbard said.

"The public has a right to know whether these are valid signatures," Earl-Hubbard said. "Are they living people? Are they dead people? Do they live in the right jurisdiction? I don't know how in the world you can test petitions if you can't see the names. It totally destroys the political process."

The 17-page opinion in John Doe #1 et al. v. Sam Reed, is available here, via the Seattle Times site.

The Terre Haute Trib-Star had this story August 31st headed "Terre Haute man receives Republican Lawyer of the Year Award." A quote from the story:

[James Bopp, Jr.] has participated in more than 100 election-related cases, including recounts, redistricting, and First Amendment challenges to state and federal campaign finance laws. He is one of the foremost lawyers in the field of campaign finance and election law and has been a leader in promoting the RNLA’s goal of ensuring elections are open, fair and honest.

BOURNE, Mass. — Wendie Howland grows her own food and heats her water with rooftop solar panels. She drives a Prius with a bumper sticker that boasts “One Less S.U.V.”

But when Mrs. Howland tried to take the next step in green living — installing a 132-foot windmill in her backyard that would generate enough electricity to power her home — she hit a wall. The planning board in this pastoral Cape Cod town twice rejected the project citing safety concerns and predicting “an adverse effect on the character of the neighborhood.”

Mrs. Howland’s defeat was sealed by a Superior Court ruling in July that backed the planning board’s decision, underscoring the steep odds that residential windmill plans face nationwide. After investing some $40,000 in a 10-kilowatt turbine and legal fees, Mrs. Howland and her husband, Francis, are giving up their two-year fight.

“It’s ludicrous,” said Mrs. Howland, 58, a health care consultant. “We were trying to make our bills smaller as we got older, in a clean and responsible fashion, and it boggles my mind that ordinary people like us aren’t allowed to do that.”

The decision is likely to be scrutinized by towns across the region and even the nation as they grapple with how to regulate windmills on residential property. In wind-rich regions, clashes like Mrs. Howland’s are increasingly common as conservation-minded people seek to install small wind turbines on their property.

Battles over the height and noise level of residential windmills, and even over the shadows cast by their blades, are springing up from Maine to California, even as the Obama administration promotes renewable energy and the federal stimulus package provides 30 percent tax credits for homeowners who install wind turbines.

Many towns still enforce old laws that prohibit anything taller than 30 feet or 40 feet on residential land — a height too low for sufficient wind power generation, experts say. Wind turbines need to be at least 30 feet higher than anything within 500 feet, including trees, which often means a tower of 80 feet or more. The Howlands’ windmill would have been more than three times the height of an average utility pole, to ensure that the surrounding white pines did not interfere.

“Everyone recoils at that,” said Jonathan D. Fitch, the Howlands’ lawyer. “It reminds me of the litigation involving cell towers in the beginning — a lot of neighborhood hostility back then, but today you hardly notice them.” * * *

While residential turbines remain a tiny fraction of the wind energy market, they are popping up often enough for many communities, especially in New England, the Midwest and the West, to start regulating them. Nearly 2,700 wind units with capacities of 10 kilowatts or less, the size used for residences, were sold nationwide last year, up from 1,167 in 2007, according to the American Wind Energy Association, a trade group.

But challenges persist even in communities that have passed ordinances on windmills, like Bourne, where residents overwhelmingly approved a bylaw regulating windmills at a town meeting in 2007. The wind energy association estimates that one-third of small wind projects are thwarted by vague or overly strict local laws, or by outdated zoning rules that preclude them.

More from the story:

Megan Amsel of the Cape and Islands Self Reliance Corporation, a nonprofit group that promotes alternative energy in Cape Cod and southeastern Massachusetts, said she had seen some disastrous wind projects — not because they proved unsafe, but because they did not generate enough power.

“It’s really hard to find a good installer,” she said, adding that there are no certification requirements. “I’ve seen some real disasters, and it can give this emerging industry a black eye.”

The wind needs to blow at least 12 miles an hour for a turbine to generate electricity — a requirement that rules out many sites — and the initial cost is steep. Mr. Stimmel said that the average cost of buying and installing a residential turbine was $30,000, and that it took 6 years to 30 years to recover that cost through energy savings.

The total cost for the Howlands’ turbine, including installation, would be $72,000, they said.

Law - Two with Hoosier connections featured by ABA Journal

William D. Henderson, Associate Professor of Law at IU Mauer School of Law, has also been mentioned in a number of ILB posts, including most recently this one from July 6th asking "Are Law Schools Relevant to the Future of Law?" He too is named a "Legal Rebel" -- see the story here.

A federal judge has rejected The Courier-Journal's effort to block enforcement of a Louisville anti-litter ordinance the newspaper says violates constitutional protections of free speech and the press.

In an opinion issued Friday, Judge Charles R. Simpson III concluded that "there is little likelihood that the Courier will succeed on the merits of its claims" in a lawsuit the newspaper filed after the Metro Council passed the ordinance in June.

The ordinance, which took effect in August, requires unsolicited print materials to be delivered to a specific place, like a porch or mailbox, rather than tossed on a lawn or driveway.

The ordinance affects anyone delivering fliers or other printed materials, but it was prompted by Courier-Journal advertising supplements. At the time the ordinance was adopted, the newspaper was delivering some 340,000 copies of the supplements weekly.

The ordinance does not apply to the newspaper itself, since it is delivered to subscribers.

In legal documents, the city described the newspaper’s delivery of the ad supplements as a “fly-and-fling method of distribution, accomplished under cover of darkness.

Unsolicited materials “are being haphazardly delivered throughout Metro Louisville … on sidewalks, yards, and driveways with no means to ensure that such items do not add to the litter problem created,” according to the preamble to the ordinance, which Simpson cited in his opinion. The preamble said the materials contribute to “visual blight.” ” * * *

“Despite the Courier’s protestations to the contrary, the speech in issue here is purely commercial,” Simpson wrote in denying the newspaper’s request for the injunction. He added that “directly or indirectly,” the ad supplements “are designed to increase Courier-Journal revenues.”

Simpson noted that the ordinance allows ad supplements to be delivered as long as they are placed in the approved places.

Ind. gov't. - Stories about access to information in Fort Wayne

"City eyes court battle for I&M data: Litigation next step in quest for info on utility system, consultant says" is the headline to a complex story by Benjamin Lanka, published by the Fort Wayne Journal Gazette on Sept. 3rd. A few quotes:

Indiana Michigan Power’s refusal to release information about Fort Wayne’s former electric utility will lead to a court battle, according to a city-paid consultant.

Anand Gangadharan, president and chief executive officer of Novi Energy, told the Fort Wayne Board of Public Works on Wednesday that he has been unable to get information from I&M despite numerous requests. Instead of getting details on the private utility’s upgrades to the former city electricity system, for example, his company has had to rely on looking at power lines and substations in person, often from behind fences. * * *

Under a lease signed in 1974, the city’s electric power grid – formerly run by City Light – was turned over to Indiana & Michigan Electric Co. That lease expires in March. Mayor Tom Henry has said the city will seek bids from electric providers to get the best deal for residents and customers.

Novi Energy, of Novi, Mich., was hired in June for $95,000 to examine the assets of the City Light area as the city investigates leasing those assets to a new power firm. The board also approved a $33,980 contract in October with R.E. Pender Inc., of Winter Park, Fla., to help analyze the value of the city’s old electric utility infrastructure.

See also this Sept. 8th column by Kevin Leininger of the Fort Wayne News-Sentinel.
"Government transparency essential" is the headline to this editorial today in the Journal Gazette. It begins:

City officials hinting that proposed legislation to increase government transparency hampers economic development and leans toward micromanagement by the City Council have only themselves to blame.

There are too many recent instances where the city administration needed to be more forthcoming with details about how the city was spending public dollars on professional contracts. Council members are right to ask for greater disclosure from Mayor Tom Henry’s administration and appear prepared to make reasonable allowances to protect economic development efforts.

Councilwoman Liz Brown, R-at large, proposed legislation requiring the city administration to share more information with the Fort Wayne City Council about city consultant contracts. Currently, the law requires council approval only for contracts of more than $100,000 per year. Otherwise, council members might never know the identities of consultants, lobbyists, attorneys or other professionals the city is hiring and compensating with public dollars.

The ordinance, introduced in June and discussed Tuesday, requires the administration to create a monthly list of professional-service contracts for the council. Council members decided to table the legislation until a future meeting.

Law - "Legal ethics experts say that collisions between the freewheeling ways of the Internet and the tight boundaries of legal discourse are inevitable"

"Legal Battle Plays Out: Online Attitude vs. Rules of the Bar" is the headline to this lengthy Sept. 12th story by John Schwartz in the NY Times. Some quotes:

Sean Conway was steamed at a Fort Lauderdale judge, so he did what millions of angry people do these days: he blogged about her, saying she was an “Evil, Unfair Witch.” [ILB - this was not smart ...]

But Mr. Conway is a lawyer. And unlike millions of other online hotheads, he found himself hauled up before the Florida bar, which in April issued a reprimand and a fine for his intemperate blog post.

Mr. Conway is hardly the only lawyer to have taken to online social media like Facebook, Twitter and blogs, but as officers of the court they face special risks. Their freedom to gripe is limited by codes of conduct.

“When you become an officer of the court, you lose the full ability to criticize the court,” said Michael Downey, who teaches legal ethics at the Washington University law school.

And with thousands of blogs and so many lawyers online, legal ethics experts say that collisions between the freewheeling ways of the Internet and the tight boundaries of legal discourse are inevitable — whether they result in damaged careers or simply raise eyebrows.

Stephen Gillers, an expert on legal ethics at New York University Law School, sees many more missteps in the future, as young people who grew up with Facebook and other social media enter a profession governed by centuries of legal tradition. * * *

In Mr. Conway’s case, the post that got him in trouble questioned the motives and competence of Judge Cheryl Aleman, and appeared on a rowdy blog created by a criminal defense lawyers’ group in Broward County. The judge regularly gave defense lawyers just one week to prepare for trials, when most judges give a month or more. To Mr. Conway, the move was intended to pressure the lawyers to ask for a delay in the trials, thus waiving their right under Florida law to have a felony trial heard within 175 days, pushing those cases to the back of the line.

“All I had left were my words,” Mr. Conway said, adding that he decided to use the strongest ones he had.

Mr. Conway initially consented to a reprimand from the bar last year, but the State Supreme Court, which reviews such cases, demanded briefs on First Amendment issues. The American Civil Liberties Union of Florida argued that Mr. Conway’s statements were protected speech that raised issues of legitimate public concern. Ultimately the court affirmed the disciplinary agreement and Mr. Conway paid $1,200. * * *

For his part, Mr. Conway noted that the judge he criticized was reprimanded last year by the Florida Supreme Court, which affirmed a state panel’s criticism of what it called an “arrogant, discourteous and impatient” manner with lawyers in another case. (Judge Aleman did not return calls seeking comment.) Mr. Conway said his practice was “probably enhanced by the experience” of going public.

But the State Supreme Court ultimately concluded that his online “personal attack” was “not uttered in an effort to expose a valid problem” with the judicial system. And so, the court concluded, the statements “fail as protected free speech under the First Amendment.”

Ind. Gov't - "State no longer holds all cards"

Niki Kelly of the Fort Wayne Journal Gazette has a lengthy (and oddly unparagraphed) story today on what looks to be an interstate "gambling race," oddly paralleling the intercontinental nuclear arms races during the cold war, but with no way out. Some quotes:

INDIANAPOLIS – Sixteen years ago, Indiana ventured into casino gambling for the first time, banking on the idea that riverboats in border communities would spur economic development and fill tax coffers.

But now, surrounding states are catching up. Ohio will have horse tracks with video slots next year, and Michigan is adding tribal casinos.

It’s a threat to the nearly $1.1 billion a year in tax revenue the state reaps, and has grown to depend on, from legalized gambling.

“In some respects we are playing defense, much more than we ever have,” said Mike Smith, president of the Casino Association of Indiana. “The state could wake up one day and find out that $300 million of their revenue is gone. It’s time to take a look at how we built this industry and make sure the tools are there to allow us to compete.”

More from the story:

“Most observers believe that at least in the state of Indiana, the market is saturated,” said Ernest Yelton, executive director of the Indiana Gaming Commission.

And the growing competition coming from neighboring states isn’t helping. Smith couldn’t even identify the biggest threat to the state, saying, “when you are surrounded, you can attack in any direction.” * * *

Yelton said it’s only a matter of time before Kentucky and Ohio get into the gambling business and that Indiana could face trouble when that happens. “For about two years now, I have tried to consistently inform legislature and administration that competition was looming and it was real and it was going to happen,” Yelton said. “It was just a question of when and what form it would take.” * * *

Bill Thompson, a professor of public administration of the University of Nevada Las Vegas, has studied the gambling industry for 30 years. He expects casino revenues to rebound when the economy does, but he said the Cincinnati-Louisville market is probably tapped out for growth. Interestingly, he said Fort Wayne development is needed to protect existing state revenue. “You have to be mindful that Ohio is ready to open casinos in Toledo, and the Battle Creek casino is reaching into Indiana,” Thompson said. “So Fort Wayne is a defensive move to keep the money from going to Michigan and Ohio, but not a growth area.” * * *

Yelton said. “We might gain in Fort Wayne but you will lose elsewhere.” And a Fort Wayne casino would be another example of relying on Hoosiers to gamble their own money. When the riverboats were first envisioned, they were placed on the borders to attract out-of-state gamblers.

Environment - "North Judson attorney argues for environment"

Jeff Manes of the Gary Post-Tribune has a lengthy interview today with Marty Lucas - a quote:

Martin Robert Lucas is a doctor of jurisprudence; he attended the Indiana University Maurer School of Law in Bloomington. He's also is a musician and environmentalist.

Lucas and his wife, Corinne, live in a century-old Victorian within the town limits of North Judson. His family has been in Starke County since the 1800s. Lucas also owns 580 acres just outside North Judson that he calls Big Eastern. * * *

His undergraduate degree is in anthropology and archaeology -- namely, salvage archaeology. He worked on finding sites before they were flooded, like Patoka Lake near French Lick. He produced the first online audio program on the Internet called "Geek of the Week."

Lucas doesn't consider himself another Ansel Adams, but if you go to his very cool Web site, www.bigeastern.com , you'll see he is an accomplished photographer.

Lucas does consider himself a musician and recently wrote the music for a children's program that will air on Nickelodeon. While in high school, he played a number of brass instruments. After high school, he became a keyboardist for a rock-'*'-roll band. But working as a sound man for other bands really helped pay his way through college.

Lucas plays mostly acoustic guitar these days. A beautiful instrumental called "Sand Bar" is just one of many songs he's written.

Saturday, September 12, 2009

Not law but important - "A Virtual Revolution Is Brewing for Colleges"

This article in the Sunday Washington Post, written by Zephyr Teachout, deserves close reading. It begins:

Students starting school this year may be part of the last generation for which "going to college" means packing up, getting a dorm room and listening to tenured professors. Undergraduate education is on the verge of a radical reordering. Colleges, like newspapers, will be torn apart by new ways of sharing information enabled by the Internet. The business model that sustained private U.S. colleges cannot survive.

The real force for change is the market: Online classes are just cheaper to produce. Community colleges and for-profit education entrepreneurs are already experimenting with dorm-free, commute-free options. Distance-learning technology will keep improving. Innovators have yet to tap the potential of the aggregator to change the way students earn a degree, making the education business today look like the news biz circa 1999. And as major universities offer some core courses online, we'll see a cultural shift toward acceptance of what is still, in some circles, a "University of Phoenix" joke.

This doesn't just mean a different way of learning: The funding of academic research, the culture of the academy and the institution of tenure are all threatened.

MICHIGAN CITY - Accused murderer Shawn Kelley's defense lawyer, who was threatened with arrest last week if he didn't show up to his next status hearing, appeared in court with her client Thursday.

Logan-Tinae Thomas offered no explanation to the court for her absence at Kelley's last two hearings. Last week, La Porte Superior Court 1 Judge Kathleen Lang threatened to issue a bench warrant for Thomas' arrest if she did not come to court one more time.

"I didn't have any court dates on my calendar," she told the News-Dispatch after the hearing.

His trial is still set for Nov. 16, but Thomas told the court she is having difficulty getting records of Kelley's competency evalutions from St. Anthony Memorial.

The legal issue at the center of the case is the power of a bankruptcy court to allow a failing company to sell all of its assets while its case is in court, without going through the reorganization process that protects creditors. That issue arises under a section of Chapter 11 (section 363) that permits a banrkuptcy trustee to make a quick sale of the firm’s property before final arrangements are made to reorganize the firm to keep it alive. The Indiana trust funds argued that this was used in the Chrysler case to accomplish an “end-around” Chapter 11. “On its face,” the petition asserted, “this deal smacks of the sort of insider favoritism that the Bankruptcy C ode was designed to prevent.”

Ind. Gov't. - Still more on "Lights Out at the Penitentiary: Strapped States are Shutting Prisons"

Updating this ILB entry from Sept. 7, Jonathan Saltzman and Peter Schworm of the Boston Globe report today in a story that begins:

Under increasing financial pressure, the state’s prison system is weighing close to $100 million in budget cuts that could force widescale layoffs and the closure of several facilites at a time of growing fears over inmate overcrowding.

Harold W. Clarke, commissioner of the Department of Correction, outlined the bleak fiscal scenario, and its potentially drastic consequences, at a monthly meeting yesterday between top prison managers and union leaders, according to Steve Kenneway, president of the Massachusetts Correction Officers Federated Union. Clarke told union officials the state is considering closing as many as four prisons and laying off 300 employees, Kenneway said.

“Obviously, we’re stunned that the fiscal situation is so egregious that we may be looking at the closure of several facilities in Massachusetts,’’ Kenneway said. “We believe that public safety is a core mission for Massachusetts government. Period. We can’t let bad people out on the street.’’

Environment - More on: City of Richmond may soon own contaminated Dana site

The city of Richmond will take ownership of the former Dana Corporation property on Williamsburg Pike later this month.
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The city has reached a tentative agreement with officials at the Indiana Department of Environmental Management to have the city take ownership of approximately 44 acres once owned by Dana so IDEM can proceed with the cleanup of the former manufacturing site.

"(IDEM) reiterated that the reason they want us to take ownership is so they can go in and clean up the property," said Tony Foster, city director of Metropolitan Development. "This will give us an asset we can market and hopefully get back on the tax rolls."

IDEM officials approached the city this year with the plan to get the property cleaned up, sold and returned to the tax rolls.

IDEM in its letter to the city listed Keith Sharp as the previous owner, while city records show that a limited liability corporation owns the property.

Wayne County took over the property when the owner stopped paying property taxes on it. The property went through a county tax sale Oct. 7, 2008, but was not sold, which allowed the county commissioners to transfer it to Richmond.

Officials at IDEM in a letter in late August said they would allow the city to take ownership before state officials send the city a "comfort letter" that would guarantee that the city would not be held responsible for the cost of the cleanup.

Amy Hartsock, IDEM spokeswoman, said the state agency will use funds from the settlement of the Dana bankruptcy to pay for the cleanup.

She said IDEM wanted the city to own the property so the previous owner would not benefit from the cleanup.

Lynne Marek has this report in The National Law Journal, dated Sept. 14th. It begins:

Judge Frank Easterbrook urged the U.S. Sentencing Commission on Wednesday to loosen the federal sentencing guidelines so that judges waste less time in precisely determining ranges that may not matter anyway.

In testimony before the commission in Chicago, Easterbrook, chief judge of the 7th U.S. Circuit Court of Appeals, said the commission's "most important current task" is revamping the structure of the guidelines in light of the U.S. Supreme Court decisions that made the guidelines merely advisory. Now that judges can sentence outside the ranges set by the guideline tables, he said, they shouldn't be spending so much time calculating those ranges in the first place.

Easterbrook had two specific proposals. First, the ranges should be made longer -- currently, a 25 percent spread is allowed between the number of months at the bottom and the number of months at the top of the range. Second, the ranges should overlap with each other more so that the possible prison times in one range overlap more with the possible prison times in the next most lenient and the next harshest ranges.

"These two changes will reduce the need to make precise findings that do not affect the outcome, and thus save time for both district and appellate judges without sacrificing any of the statutory goals," Easterbrook said.

Even under advisory guidelines, district judges are still required to calculate an appropriate range before using their own discretion in determining a sentence. Likewise, appellate judges must still make sure that the range calculation was done correctly even when a sentence is outside the range.

Here is a story dated Sept. 11 in the Washington Post, by Kari Lydersen, headed "U.S. Sentencing Commission Urged to Give Judges More Flexibility." The story begins:

CHICAGO, Sept. 10 -- Advocates for added flexibility in criminal sentencing took their appeal to the U.S. Sentencing Commission, which heard testimony here Wednesday and Thursday as part of the agency's first nationwide series of public hearings since federal sentencing guidelines took effect 22 years ago.

Criminal justice reform proponents have long pushed the federal government to back alternatives to incarceration and more flexible sentencing for drug, child pornography and other convictions. While past critics of federal guidelines criticized them for removing judges' discretion, others in law enforcement and advocacy want to use the guidelines to promote alternative sentencing. They said they think the commission is increasingly receptive to that idea.

Daniel Suddeath reports in the New Albany News & Tribune in a long story that begins:

Chief Floyd County probation officer Gary W. Collins habitually made sexually suggestive comments to three women co-workers while on the clock, according to a lawsuit filed Tuesday in the Southern District of Indiana U.S. District Court.

Collins whistled at the women, made comments about their physical appearances and sent provocative e-mails to at least one of the complainants, according to the lawsuit. * * *

Floyd County was also named as a defendant in the case along with Collins. It’s not the first time Collins has been cited in a lawsuit, as he settled a federal case in 2002 filed by a former Floyd County court employee who accused him of threatening to rape her.

The three plaintiffs in the current case — Alicia Burden, Melissa Jackson and Jacqueline Brannon — worked as secretaries or administrative assistants in the Floyd adult probation office at some point over the past two years.

The U.S. Environmental Protection Agency said it wants to make certain the proposed mines won't cause water pollution and violate the Clean Water Act before permits are issued by the U.S. Army Corps of Engineers.

Most of the permits are for mines in Kentucky, the nation's No. 3 coal-producing state. Also on the list are operations in No. 2 coal producer West Virginia, Ohio and one mine in Tennessee.

Ind. Courts - "Clark Circuit Court to hold night sessions"

Chris Quay has this report in the Louisville Courier Journal. Some quotes:

For the first time, Clark Circuit Court will offer night sessions with the hope of providing better case service and scheduling options for lawyers who use the court and people who have difficulty getting there during regular daytime hours.
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Night court sessions will begin Sept. 22 and will continue weekly on Tuesdays from 5 to 7:30 p.m. through the end of the year. The sessions will undergo evaluations during that time to determine whether they should continue into next year, said Circuit Judge Daniel Moore.

“I think this is consistent with the theme of changes in the court system,” Moore said. “Judges have taken some significant steps to make the system more effective. This is another step.”

Moore, who introduced the idea, said among the factors to be considered in determining whether night sessions will go past December is the high number of people on probation. Night sessions could be used to help lighten the number of those hearings that take up time during regular sessions, he said.

“We run out of time during the day a lot,” he said.

The extra hours also should help with the number of criminal cases that the court handles, Moore said.

Mondays and Tuesdays are set aside now for criminal case dockets, and at times the sheriff’s office has to escort five or six prisoners to appear in court while other cases are being conducted. That creates a potentially dangerous environment, Moore said, and moving some cases to the evening could help make the courthouse safer.

Cases dealing with initial hearings, motions, civil and criminal discovery disputes and some family cases and estate matters will make up the majority of night sessions, Moore said.

He also said individuals who post bail in a timely fashion will be handled differently. Initial hearings for those cases will be scheduled for the following Tuesday evening, whereas normally the court dates would be set for Monday or Tuesday afternoon

“We fully support Judge Moore’s efforts to expand court hours,” said Jeremy Mull, Clark County’s chief deputy prosecutor. “Anything that judges can do to expedite the system, we support.”

Friday, September 11, 2009

Ind. Gov't. - "Terre Haute bans feeding unsterilized cats"

That is the headline to a brief AP story on the Indianapolis Star website this afternoon that reports:

TERRE HAUTE, Ind. — Giving food or water to feral cats that have not been spayed or neutered is now illegal in Terre Haute.

The new ordinance also increases the city license fee for an unsterilized cat or dog to $100, up from the current $25. Licenses for pets that have been spayed or neutered will cost $5.

Okay, does this mean that before you can be charged, the city must capture the cat that you have set out food or water for and check to see if it has been spayed or neutered?

And how can you tell if a female cat has been spayed? According to this article on eHow:

In order to control the quickly growing cat population, many folks choose to have their pets spayed. If you adopt a stray cat, however, sometimes it can be difficult to determine if spaying has already taken place. It is already difficult to determine if a male cat has been neutered, but it can be extremely difficult to determine if a female cat has been spayed. * * *

Even vets can have a difficult time determining if a female cat has been spayed. The scar can heal so well, it becomes invisible to the naked eye. In this case, sometimes a cat is found spayed when they open her up to perform the surgery and find no uterus.

Determining if a male cat has been neutered is somewhat easier (at least in theory), according to this companion article, but the "cat will likely protest. Wear gloves or wrap your cat safely and snugly in a towel."

The Terre-Haute Tribune-Star gives a much better description of the ordinance in its story today, reported by Arthur Foulkes. The story begins:

The Terre Haute City Council voted 7-1 Thursday night to pass a revised animal control ordinance that sets standards for handling “cat colonies” in the city.

According to the amended ordinance, it is now against the law to provide food, water or shelter to a colony of “free-roaming cats” unless the colony is “managed” and registered with the proper city officials. It is also unlawful to feed, provide water or shelter to free-roaming cats except as part of a “trap, neuter and return” program.

Trap, neuter and return refers to catching a stray cat, having it “sterilized” at a veterinarian’s office and then returned to its colony.

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

Brian B. Baldwin (“Baldwin”), a member of the Indiana Bar appearing pro se, appeals the trial court’s entry of summary judgment in favor of Tippecanoe Land & Cattle Company (“Tippecanoe Land”). We affirm. * * *

Taken collectively, Trial Rules 8(B), 9.2(B), and 11(A) mean that an attorney’s signature on a general denial rejects the assertions in the claim, but does not constitute an oath by which the pleader denies the execution of an instrument attached to a claim.

As Tippecanoe Land attached the Note and Second Mortgage to its cross-claim, execution of both would be deemed to be established, by operation of Trial Rule 9.2(B), unless Baldwin denied under oath that they were executed. Baldwin, himself an attorney, filed a general denial. He signed it as “respectfully submitted.” App. at 55. He omitted to include a statement that his general denial was truthful and made under penalty for perjury. Thus, Baldwin failed to deny under oath the execution of the Note. We therefore conclude that execution of the Note was deemed to be established, contrary to Baldwin’s argument on appeal. The trial court did not err in entering summary judgment for Tippecanoe Land.
Affirmed.

The Indiana Department of Child Services (“DCS”) appeals the trial court’s order that it pay the Guardian Ad Litem (the “GAL”) fees associated with the underlying Child in Need of Services (“CHINS”) proceeding. We reverse and remand. * * *

DCS asserts that the trial court erred in ordering it to pay any fees associated with the GAL’s services pursuant to Indiana Code section 31-40-3-2. * * *

On January 1, 2009, Public Law 146-2008 went into effect, amending portions of Indiana Code 31-40. Namely, it shifted the burden of paying for child services in CHINS proceedings from the county to the State via Indiana Code section 31-40-1-2(a) * * * [ILB Note: - changes were also made by PL 182-2009(ss), SEC. 387, but may not be relevant here.]

Public Law 146-2008, however, did not address whether the payment of fees associated with services provided by GALs also would shift to the State. Rather, it left Indiana Code section 31-40-3-2 unaffected. * * *

Thus, we agree with this Court’s prior decision that, given Indiana Code section 33-24-6-4, “the General Assembly intended for the onus of financial support for GAL . . . programs to lie with the county, and not the State.” Id. at 1182.

We therefore find that Indiana Code section 31-40-3-2 requires the county, not DCS, to pay fees related to GAL services. Accordingly, we reverse the trial court’s order that DCS pay the GAL-related fees in the underlying CHINS proceeding and remand for further proceedings.

An ILB observation: The current case (In re JJ - 9/11/09), In re N.S. (6/30/09), and In re J.W.,(8/20/09) all come out of the same Hendricks County court, appear to involve the same issue re GAL fees, and all three have resulted in reversals.

Officer Dine testified that his law enforcement training and experience had taught him that erratic vehicle movements were “a telltale sign of impairment or [that] someone's ill or injured”; and that after he observed the SUV continuously weave from side to side in its lane and nearly strike a concrete median when making a turn, he “wanted to . . . check and make sure [the driver] was okay,” i.e., that the circumstances “bore further investigation.” (Tr. 12, 13). These are articulable facts that support the reasonable suspicion that criminal activity was taking place, to wit: that the driver was operating the SUV while impaired from intoxication. Such circumstances warranted a brief traffic stop to “confirm or dispel” Dine's suspicion in this regard. Hardister, 849 N.E.2d at 570.

This was a proper stop traffic stop due to the officer's reasonable suspicion of driver impairment. Therefore, the trial court did not err in refusing to suppress the resulting evidence on this basis.

NFP civil opinions today (2):

John D. Geerligs v. Susan M. Hoffman (NFP) - "John D. Geerligs appeals the trial court’s decree of dissolution. He argues that the trial court denied him due process by conducting the dissolution hearing without his presence. Geerligs specifically contends that he was unable to attend the hearing because the courtroom doors were locked. However, we do not reach the issues raised by Geerligs. Instead, we sua sponte raise the following issue: whether the trial court’s decree of dissolution is supported by sufficient evidence. We reverse and remand."

A.H. Patch, et al v. William Fluty, Jr., et al (NFP) - "Even if we were inclined to disregard the clear provisions of the statutes and decide this case entirely on the equities, the Owners have provided us no facts to tip the balance in their favor. It is not enough to say that the mechanical enforcement of the statute would divest the Owners of their property. If we were to hold that this (i.e., loss of property after the failure to receive actual notice) is enough to tip the equities in their favor and defeat the issuance of a tax deed to the County under these circumstances, then the statute's notice provisions would be rendered meaningless. We decline to so hold.

"The County complied with I.C. § 6-1.1-25-4.5 in sending notice of its lien and intent to acquire title to the subject property via tax deed. Tax sales and the issuance of a tax deed are purely statutory creations. Porter v. Bankers Trust Co. of California, N.A., 773 N.E.2d 901. “[T]herefore, parties must strictly comply with each step set forth in the statutes.” Id. at 909. The Owners acknowledge that the County did that. The Owners have identified no cognizable injustice that will result from following the statute. In this case, equity must follow the law. See Porter v. Bankers Trust Co. of California, N.A., 773 N.E.2d 901."

Ind. Decisions - Two Indiana decisions today from 7th Circuit

In Khem Bissessur v. IU Board of Trustees (SD Ind., Judge Barker), a 9-page opinion, the Supreme Court's Iqbal and Twombly decisions are discussed at length and the opinion, by Judge Williams, states in a paragraph beginning at the end of p. 7: "Our system operates on a notice pleading standard; Twombly and its progeny do not change this fact." More from the opinion:

Khem Bissessur was expelled
from the Indiana University School of Optometry after
receiving several sub-par grades and failing a clinical
rotation. He alleges that he had a protected property
interest in a continuing education at the University,
which was established in an implied contract between
the parties. It is the University’s violation of his entitlement
to a continuing education, he asserts, that forms the basis for several constitutional claims against the
University and its employees. His complaint, however,
fails to identify any facts that give the defendants
adequate notice of the basis for these claims. The complaint
fails to state that the University made any
promises to Bissessur or how it entered into a contract
with him, implied or otherwise. Therefore, the district
court dismissed his complaint for failure to state a
claim, and we affirm. * * *

Here, Bissessur
wants us to believe that the University implicitly
promised him that he had a right to a continuing education,
and that he promised the University “something” in
return, establishing an implied contract between the
two parties. This implied contract, he argues, gave him
an entitlement which is the basis for his due process and
other constitutional claims. His complaint, however, fails
to allege any facts that even remotely relate to this theory.
It provides no notice for the basis of Bissessur’s
claims aside from a mere recitation of their elements.
Among other things, it contains no facts concerning:
(1) what, if any, promises the University made to
Bissessur; (2) how these promises were communicated;
(3) what Bissessur promised in return; or (4) how these
promises created an implied contract. In sum, it leaves
the University with no notice of what this “implied contact”
is or how it supports Bissessur’s constitutional
claims. So, it fails here as it would have failed in 1957. Allowing this case to proceed absent factual allegations
that match the bare-bones recitation of the claims’
elements would sanction a fishing expedition costing
both parties, and the court, valuable time and resources. [ILB emphasis]

After the termination of their criminal proceedings, the
Suarezes filed a § 1983 action against a multitude of
defendants. See 42 U.S.C. § 1983. The Suarezes’ claims
fell into two basic types. First, they alleged that the
search of their house and their arrests violated the
Fourth Amendment. Second, William alleged that the
police used unnecessary force when they arrested him.
All of the defendants were awarded summary judgment
on the Fourth Amendment claims. Most defendants were
similarly granted summary judgment on the excessive
force claim, except for officers Tomasko, Smith, and Radic,
who prevailed at a jury trial. The Suarezes appeal the
denial of summary judgment on the illegal search and
arrest claims and raise an evidentiary issue arising
from the excessive force trial. They limit their appeal to
their claims against the town of Ogden Dunes and six
individual officers from the variety of law enforcement
entities responsible for the Indiana Dunes environs. * * *

For the foregoing reasons, the judgment of the district
court is AFFIRMED.

VALPARAISO -- County officials are preparing for wind power as an energy alternative, both for private companies creating it and for residents' using it to defray bills.

The Plan Commission voted Wednesday to send two new windmill ordinances to the County Commissioners for a vote Oct. 6.

The need for the ordinances came about because Tradewinds, an Italian-backed power company, approached the county last winter about erecting up to 150 windmill towers on about 30,000 acres between Kouts and LaCrosse. The towers would be up to 500 feet tall, higher than the ones in Benton County, County Planner Robert Thompson told the Plan Commission.

"They could sell electricity basically anywhere east of the Mississippi," Thompson said. However, the company is talking to power companies in Virginia and Indianapolis.

The ordinance would regulate height, distance from adjacent property and proximity of windmills to each other. Noise from the huge blades of the windmills is not a problem, and they generate about the same amount of sound as a refrigerator.

"We stood directly under them, and we could barely hear them," Thompson said. He also noted that most wind power companies are foreign-backed. "There's not one company in the United States that's doing this," Thompson said.

For those installing a wind-powered energy generator for their own homes, they will need to have at least two acres of land. Anything less, and they will need to go before the Board of Zoning Appeals.

Plan Commission Attorney Scott McClure said the BZA would grant special exceptions instead of variances, which means more specific rules for what would be allowed.

Although some Plan Commission members spoke against restricting the ordinance by the amount of energy current models can produce, McClure said that the intent is to watch an unfamiliar situation. With changes happening quickly, the county could review and update the ordinance every six months.

A former Illinois assistant public defender’s blog musings about her difficult clients and clueless judges has landed her in trouble with disciplinary officials.

Kristine Ann Peshek has been accused of revealing client confidences, allegedly for describing her clients in a way that made it possible to identify them. Peshek referred to her clients by either their first names, a derivative of their first names, or by their jail identification numbers, according to the disciplinary complaint filed on Aug. 25. The Legal Profession Blog noted the accusations.

Peshek counters that she would never have posted information that she believed would lead to identification of a client, absent the client's permission or unless the information is a matter of public record. She tells the ABA Journal she is in the process of hiring a lawyer.

Environment - More on: Great Lakes losing even more water via St. Clair River

Updating this ILB entry from July 26th, Dan Egan of the Milwaukee Journal Sentinelreports today in a story headed "Great Lakes consultants hold back public comments on study." It begins:

The authors of a controversial study looking into low water levels on Lakes Michigan and Huron promised from the outset that their $3.6 million investigation would be "as open and as transparent as possible."

It's been anything but.

The latest example: The study authors are refusing to release the public comments they spent the summer soliciting. Some of those comments are highly critical of the study's conclusion that nature - instead of a 1960s Army Corps of Engineers dredging project - is to blame for recent lake-lowering erosion in the St. Clair River and therefore nothing should be done to fix the problem.

The St. Clair River is the primary outflow for Lakes Michigan and Huron.

The heavy-hitting conservation group Great Lakes United isn't buying the decision to do nothing, claiming that the study's own science shows the daily water loss from Lakes Michigan and Huron is 9 billion to 12 billion gallons per day - more than five times the amount of water siphoned by the city of Chicago.

But don't expect the study authors to release Great Lakes United's detailed critique of their report. At least not yet.

The public comment period ended Aug. 1. The study is scheduled to be submitted Oct. 1 to the International Joint Commission, which funded the work.

The Joint Commission is a binational board that oversees U.S. and Canadian boundary waters issues.

Study spokesman John Nevin says the public comments will be released once the study board has had a chance to respond to them. He can't say when that will be.

"What are they hiding?" said Noah Hall, a law professor at Wayne State University who was heavily involved in the crafting of the Great Lakes compact, an agreement reached last year among the eight Great Lakes states that restricts large-scale water exports from the five Great Lakes.

The compact is viewed as a model of how to engage the public in big issues facing the Great Lakes.
'Very disappointing'

"That's a very unusual position to take regarding public comments," Hall said of the St. Clair study. "Typically at the state and federal level, public comments are made available instantly - usually online - as soon as they are submitted. It's very disappointing."

The report is important because it is designed to serve as a guide for lake management decisions for the coming decade, and its conclusions could affect everything from public beaches to marina operators to commercial shipping.

A number of papers yesterday and today are carryng an AP story by Charles Wilson about the August 6th opinion. The story begins:

An Indiana court has ruled that a pizza shop must pay for a 340-pound employee's weight-loss surgery to ensure the success of another operation for a back injury he suffered at work -- raising concern among businesses bracing for more such claims.

The Indiana Court of Appeals decision, coupled with a recent Oregon court ruling, could make employers think twice before hiring workers with health conditions that might cost their companies thousands of dollars down the road.

"This kind of situation will happen again . . . and employers are undoubtedly worried about that," said Lewis Maltby, president of the National Workrights Institute in Princeton, N.J., an offshoot of the American Civil Liberties Union.

Boston's The Gourmet Pizza must pay for lap-band surgery for Adam Childers, a cook at the store in Schererville, under last month's Indiana ruling that upheld a 4-3 decision by the state's workers' compensation board.

Unfortunately there is no further mention in the story (as it appears in the Indianapolis Star) of the "recent Oregon court ruling."

Boston's attorney, Kevin Kearney of South Bend, said the company has asked the court to hear the case again. He declined to comment further. The Dallas-based company, which has more than 50 franchise stores in 25 states, also declined to comment Wednesday. A message seeking comment also was left with the restaurant in Schererville.

"There's actually a string of cases across the country that have reached similar conclusions," said Childers' attorney, Rick Gikas of Merrillville. He cited cases in Ohio, California, Oregon, Florida and South Dakota, including some dating back to 1983.

The most recent was in Oregon, where the state's Supreme Court ruled Aug. 27 that the state workers' compensation insurance must pay for gastric bypass surgery to ensure that a man's knee replacement surgery was effective.

But some believe the Indiana case — which experts said reflects general rules of workers' compensation law — could have a chilling effect on business.

"The case in Indiana kind of draws a line in the sand," said Tom Lynch, CEO of Lynch, Ryan & Associates Inc., a Wellesley, Mass.-based consulting firm that helps businesses manage workers compensation.

What's different, he said, is that it was based not just on state law but on principles used in several states.

"I think employers are going to be really upset about this," said Maltby, whose group generally advocates for workers.

Part of the reaction stems from people's attitude to obesity, he said. "Because we all think it's his own fault for being so fat, and it's such an expensive procedure, a lot of people would say it isn't fair to the employer."

Gikas said Childers has lost some weight on his own during his two years off. Court records said he had also tried to quit smoking. He's still awaiting the surgery.

Lynch said the ruling could make employers wary of hiring people who are overweight or have other conditions that might expose them to workplace injury. He noted that employers in all 50 states must take workers "as they are" when they hire them.

Lesley Stedman Weidenbener has this report this afternoon on the Louisville Courier Journal website about the 7th Circuit's decision today in New Albany DVD (see ILB summary here). It begins:

A federal appeals court ruled Thursday that the city of New Albany must present clear evidence that an adult book store is causing excessive litter, crime or other problems before it can impose additional restrictions on its operations.

The Chicago-based 7th U.S. Circuit Court of Appeals also said that New Albany DVD – which has also been called “Cleopatra's super store” – can remain open pending a district court proceeding to consider those issues.

The decision by a three-judge panel of the appeals court comes nearly four years after the city and the book store made oral arguments in the case and just a few days after the court ruled in a similar Indianapolis case.

In the Indianapolis case, the court ruled that adult businesses selling books, movies and sex paraphernalia in the city will be able to open on Sundays – and 24 hours a day – unless the city can prove there is some compelling reason why it is singling out that particular day and particular hours.

“These are two extremely significant opinions,” said Steve Mason, a Hollywood, Fla., lawyer who represents the New Albany DVD bookstore. “The court is saying if you’re going to put enhanced restrictions on them (adult bookstores), you have to have real evidence establishing the community is harmed in a real way. It isn’t enough for lawyers to say they cause crime and lower property values.”

U.S. District Judge Sarah Evans Barker ruled against the city, saying its zoning ordinances adopted after officials ordered the store closed were too broad. She ordered the city to let the store remain open. The city then appealed to the court of appeals, which led to Thursday’s ruling.
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In it, the appeals court concluded that New Albany’s ordinance was not too broad and said the district court should not have issued an injunction preventing it from taking effect and allowing the store to open.

That part of the ruling was hailed as “an absolute victory for municipalities” by a spokeswoman for a group of Kentucky and Southern Indiana residents who fight adult-oriented businesses. “The court has affirmed that the city has the right to regulate” adult businesses, said Mary Ann Gramig, director of policy and operations with ROCK – Reclaim Our Culture, Kentuckiana.

However, the appeals panel didn’t reverse the injunction. Instead, the panel concluded the city needed to offer more proof that additional regulations were warranted, saying “sellers of books and movies enjoy constitutional protections that sellers of snow shovels, shoes, and parakeets do not.”

The panel said many of the studies offered by the city to justify zoning restrictions were based on concentrations of adult businesses, including some offering live entertainment that New Albany DVD does not have. “They do not necessarily demonstrate that businesses selling books and DVDs have the same consequences for morals offenses (prostitution, lewd exhibition) or other kinds of crime,” the court said.

The city also cited anecdotal evidence about pornographic litter and suggested that adult bookstores could expose customers to thefts.

But the court said the thefts argument was “paternalistic” and the city had not proven a litter problem. * * *

Mason said the city “doesn’t have a prayer” of presenting strong enough evidence to justify closing the store.

“They’re going to be liable for our fees, all our expenses” if they proceed and lose, he said. “It’s going to be a big bill and they probably don’t have the political and financial sense” to settle the case.

No appellate court has required a city to adopt a rule
of the kind that the district court thought necessary.
“Narrow tailoring” does not mean that the ordinance
must be the least restrictive possible regulation. See Ward
v. Rock Against Racism, 491 U.S. 781 (1989). When some
regulation is justified, a city has considerable discretion
on matters of detail. The sort of zoning rule that
New Albany enacted has been too widely used, and too
often sustained, to be upset as “not narrowly tailored.”

This does not mean, however, that the injunction must
be reversed, for a prevailing litigant is entitled to defend
its judgment on any ground preserved in the district
court, even if the district judge rejected that argument.
Plaintiff defends its judgment with the argument that
New Albany has not established that book and video
stores offering only take-home items cause any
untoward secondary effects. The Supreme Court in
Alameda Books and Playtime Theatres held that proof of
such effects is essential if municipalities regulate adult
establishments differently from the way they regulate
other similar businesses—for the sellers of books and
movies enjoy constitutional protections that sellers of
snow shovels, shoes, and parakeets do not. * * *

The district court needs to take evidence and apply
intermediate scrutiny to New Albany’s ordinance. The
case is remanded for proceedings consistent with this
opinion and Annex Books. The injunction should remain
in place pending the outcome of this hearing.

Ind. Decisions - Court of Appeals issues 4 today (and 3 NFP)

Following a jury trial, Wayne Brown was convicted of three counts of Child Exploitation as class C felonies and five counts of Possession of Child Pornography as class D felonies. Brown was subsequently sentenced to a total aggregate term of fourteen years incarceration. On appeal, Brown presents four issues for our review: 1. Did the trial court abuse its discretion in permitting the State to amend the charging information? 2. Do Brown's convictions violate principles of double jeopardy? 3. Did the prosecutor engage in misconduct? 4. Did the trial court abuse its discretion in sentencing Brown? We affirm.

Timothy Stevens appeals his convictions for three counts of Aiding in Theft, as class D felonies, and two counts of Bribery, as class C felonies. Stevens presents two issues for our review, which we consolidate and restate as: 1. Is the evidence sufficient to sustain Stevens‟s convictions for aiding in theft and bribery? 2. Is there a fatal variance between the charging information and the evidence presented at trial with respect to Stevens's convictions for aiding in theft? We affirm.

Based on the foregoing, we find that (1) the companies owed the former members of the LLCs and former shareholders of the corporation fiduciary duties regarding the preparation of tax documents covering the period before the separation but drawn up after the separation; (2) the former members of LLCs and former shareholders of the corporation have a right to inspect company books and records to evaluate tax documents drawn up after the separation but covering actions before the members and shareholders separated from the companies; and (3) the trial court properly denied the Abdallas' motion for summary judgment on their assertion of willful misconduct and gross negligence as they failed to designate evidence. Affirmed.

John Hill was seriously injured during the course of a hospitalization. Several law suits arose out of this injury, including a products liability suit against pharmaceutical companies and a medical malpractice suit against Hill's physicians. Attorneys Kenneth J. Allen, David J. Fitzpatrick, and Mitchell Iseberg entered into a fee-sharing contract under which Fitzpatrick agreed to handle the products liability suit and Allen would handle the medical malpractice suit. Allen, Fitzpatrick, and Iseberg, with the approval of Hill and his wife, agreed that Allen would receive 50% of any attorney fees generated by the two suits and Fitzpatrick and Iseberg would split the other half. The clients later discharged Allen from the products liability suit shortly before it settled for a large sum of money, generating over two million dollars in attorney fees, which Fitzpatrick distributed to himself and Iseberg and did not share with Allen. Allen subsequently withdrew from the medical malpractice suit. During protracted litigation over the fees, the trial court repeatedly ordered Fitzpatrick to disclose the settlement amount. Ultimately, Allen filed a motion for default judgment against Fitzpatrick, which the trial court granted due to Fitzpatrick's disobedience of its discovery orders. The trial court later entered judgment in Allen's favor in the amount of $1,350,000, reflecting what the court believed to be 50% of the attorney fees. Fitzpatrick filed a combined motion to correct error and motion for relief from judgment, which the trial court denied. Fitzpatrick now appeals, raising a number of issues, which we restate as: (1) whether the trial court erred by entering default judgment against him, (2) whether the trial court erred by awarding contractual, rather than quantum meruit, damages, and (3) whether the trial court incorrectly calculated the damages to which Allen is entitled from Fitzpatrick under the contract. We conclude that the trial court did not abuse its discretion by entering default judgment against Fitzpatrick due to his contumacious disregard for the trial court's discovery orders and that neither case law nor the Indiana Rules of Professional Conduct entitle Allen only to quantum meruit damages rather than contractual damages. We further conclude that, while the trial court did not err by calculating damages without a damages hearing, the trial court abused its discretion by failing to subtract from the attorney fees a sum that was paid to Lewis. We affirm in part and reverse in part.

NFP civil opinions today (1):

SFS, LLC, et al v. Rita L. Denney (NFP) - "Based on the foregoing, we conclude that the trial court erred when it ordered SFS to return the interest it had received when Delaware County redeemed the tax lien which SFS had purchased.
Reversed and remanded with instructions."

Courts - "Requests to Change Venues of Trials Rarely Move Judges"

Last week, a federal court in Iowa made a rare ruling. The judge ordered a trial against a meatpacking plant to be moved out of the state after finding the local publicity had been "so extensive and corrupting" that the trial could be unfair.

U.S. courts have long recognized media attention could jeopardize a defendant's Sixth Amendment right to an impartial jury. Yet one of the main remedies the courts have sanctioned to preserve that right -- a change of venue -- is seldom granted.

The WSJ Law Blog picks up the story here, with Ms. Forsyth writing in an entry that begins:

David Bowie may value changes, but it seems a lot of judges don’t.

Otherwise, changes of venue might not be so granted so rarely, a topic explored in the WSJ’s Law Journal today. (see above)

While the piece looks at a variety of cases, for now, we’re going to focus on one, originally slated to go to trial in the Northern District of Iowa. The case gives a good example of how a judge can be persuaded to change the venue — if the defense attorneys can build strong evidence of pervasive community bias due to media attention.

SOUTH BEND — Just when Notre Dame officials thought the storm of controversy over President Barack Obama's commencement address and honorary degree had quieted, a new set of dark clouds is brewing in court this week.

A nationally prominent conservative advocacy group is gearing up for a legal battle to defend about 70 of the anti-abortion activists arrested on campus last month on misdemeanor trespass charges.

SOUTH BEND — A judge has denied a motion to recuse herself from the proceedings of more than 80 anti-abortion advocates who plan to take their trespassing cases to trial.

Attorney Thomas Dixon filed a motion in August asking for a change of judge in the trespassing cases because he believes that St. Joseph Superior Court Judge Jenny Pitts Manier is biased.

Dixon represents 88 clients who were arrested on the University of Notre Dame property in May during the protest of commencement speaker President Barack Obama. Several additional trespass cases are not being fought in court and/or are being handled separately from the 88.

Dixon and fellow attorney David Wemhoff cited three grounds for the requested recusal, including: that Manier ruled against a pro-life plaintiff in a previous case, that Manier's husband is a retired Notre Dame professor and a "recognized leader" (of Notre Dame) and that even without actual bias is the perception of bias because of the above reasons.

"We believe there's a bias contrary to the clearly established law," Dixon said when reached by phone Wednesday.

In her seven-page denial filed Wednesday, Manier denies having any personal or judicial bias in ruling over the trespassing cases. * * *

Ind. Courts - "Homeowners spin wind turbine lawsuit back to judge"

A Warrick County judge will rule again on a variance granted by the county's Board of Zoning Appeals that allows a resident of the Huntington Creek Subdivision to build a wind turbine on his property.

Homeowners in the Huntington Creek Subdivision, represented by attorney Les Shively, have asked the court to overturn the decision the board made in October allowing David Johnson, also a resident of the subdivision, to erect a 60-foot-tall wind turbine on his lot.

On Wednesday, Shively and the zoning board's attorney, Morrie Doll, appeared in front of Warrick County Superior Judge Keith Meier for oral arguments. When Meier makes his decision, it will be the second time he's ruled in the case.

His first ruling ordered the board to vote on the variance again and to vote on six questions in its decision, which included addressing whether it would be injurious to public health, safety, public morals and general welfare of the community and whether the use and value of the area's adjacent property would be affected in a substantially adverse manner.

Board members were allowed to vote based only on previous documents and testimony, and it again passed the ordinance.

On Wednesday, Shively told the judge that the board's finding did not "rest on a rational base" in the case and it made its ruling based on "improper considerations."

"I'm asking this court to look at that record under the substantial evidence and determine if it was substantial evidence ... that the petitioner has met all prerequisites," he said. "... The variance never should've been granted by the Board of Zoning Appeals. We believe when an application was made with the Area Plan Commission ... it should've been rejected."

Doll told the judge that the board's decision was "rational and based on evidence," and the ordinance does not define what is and is not an accessory on a lot.

"That's left to the discretion of the Board of Zoning Appeals," he said. "Whether a wind turbine at any height is appropriate will now be determined by the court. What may not have been customary years ago ... is becoming customary. This is a cutting edge case of what's going to be a long line of cases before the court."

Meier told the parties that the case "exemplifies where technology outpaces law."

The class certification could put pressure on the three remaining defendants to settle rather than risk losing in a jury trial. Under federal law, plaintiffs in the case can seek damages triple the actual overcharges.

Three other defendants in the case -- Shelby Materials, American Concrete and Prairie Material Sales -- have already settled out of court for a total of $24 million. A fourth defendant, Hughey Inc., has filed bankruptcy.

The $24 million in settlement money is being held in a bank account to be distributed to victims, Gilchrist said.

The class is made up of 5,000 direct buyers of ready-mixed concrete, typically sold by the truckload, from the defendants' Central Indiana plants. The class is automatically created from company sales records. Buyers who don't want to take part in the lawsuit can opt out, Gilchrist said.

Buyers include contractors, commercial builders, farmers and do-it-yourselfers. No municipalities are included because they don't buy concrete directly, Gilchrist said.

Plaintiffs claim they were overcharged millions of dollars after suppliers colluded to set inflated prices to charge buyers, a federal crime known as price-fixing.

G. Daniel Kelley Jr., an attorney for IMI, one of the largest concrete suppliers in Indiana, declined to comment on the judge's ruling.

Barker said in her ruling that pursuing the case as a class action conserves judicial resources.

The government also pursued criminal charges against the concrete companies.

In 2005, the U.S. Justice Department slapped concrete giant IMI with what then was the nation's largest antitrust fine in history -- $29 million -- for illegally driving up the price of concrete sold in the Indianapolis area.

A long side-bar to the story provides details on "companies [that] were involved in the conspiracy to fix ready-mix concrete prices."

Ind. Courts - "Murder trial delayed after defenders withdraw"

MARION, Ind. - A Marion murder trial was delayed after public defenders learned they wouldn't be paid.

Alton Moss had been set to go on trial starting Tuesday in Grant Superior Court. But public defenders Bruce Elliott and Joe Keith Lewis filed a motion to withdraw and asked the judge to continue the case so new lawyers would have time to prepare. Judge Jeff Todd granted both requests.

Public Defender Board Chairman Gary Thompson said there has been a change in the way public defenders are paid and contracted employees now handle murder cases and overflow cases from other public defenders.

Lewis says legal problems could have arisen if he and Elliott had remained on the case, not been paid and lost at trial. The trial was rescheduled for Jan. 11.

The ILBchecked the Marion Chronicle-Tribune for more information, but it is now open only to home delivery subscribers.

As he pleaded with a judge to spare his client from jail time for her meth convictions, attorney Doug Walton said when he took the LSAT with Teresa Perry years ago, he never imagined he'd one day defend her in court.

"She was bright-eyed and pursuing her goal of becoming a lawyer," Walton said, describing his client as "truly remorseful."

After listening to more than an hour of arguments by attorneys, Vanderburgh Superior Court Judge Wayne Trockman sentenced Perry to a total of six years in the Indiana Department of Correction.

Perry wept throughout the sentencing, as did many of the more than 20 people who crowded into the courtroom to support her.

Her pastor, the Rev. Jeffrey Stratton of American Baptist East Church, has been active in her recovery. During Tuesday's sentencing, he told Trockman he did not believe Perry should serve jail time.

"When my own brother was in the midst of his addiction, I testified in court that he needed prison time," Stratton said. "But I see this case as a success story. A tremendous amount of resources have been brought to bear, and that shouldn't be held against her."

Perry attended an inpatient treatment program and has continued recovery efforts through other local programs since her arrest.

An Evansville attorney recently convicted and sentenced to jail on methamphetamine charges has been suspended from practice by the Indiana Supreme Court.

The ruling, issued this month by the Indiana Supreme Court Disciplinary Commission, suspends Teresa Perry from the practice of law in Indiana “until further order of the Court,” due to Perry being found guilty of a felony.

Today the Supreme Court has posted a further order, filed Sept. 4. It is a 3-2 ruling, with Shepard and Dickson dissenting. The majority opinion reads in part:

Regardless of the date on which Respondent is eligible to seek reinstatement, her petition would be granted only if she met the most stringent requirements of proof that her rehabilitation is complete and she can safely reenter the legal profession. With this in mind, and in light of the Court's desire to foster agreed resolutions of lawyer disciplinary cases, the Court now APPROVES and ORDERS the agreed discipline.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than two years or until her criminal sentence has been completely served, whichever is greater, without automatic reinstatement, beginning July 29, 2008 (the effective date of her interim suspension). Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of that period, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). [emphasis in the original]

The dissent, written by J. Dickson, with C.J. Shepard concurring:

I would reject the Conditional Agreement because it leaves open the possibility that the Respondent may eventually resume the practice of law despite being convicted of multiple felonies involving both dealing in and possession of methamphetamine. Permitting such a convicted felon to practice law is unacceptable, in my opinion, because it places at risk the citizens who may seek future legal representation from the Respondent, and it undermines general public confidence, trust, and respect for the Indiana legal system as consisting of persons morally sound, fit, and suitable to be safely entrusted with the personal interests of others.

Law - "Reality's knocking" The recession is forcing law schools to bow to reality"

This story, dated Sept. 7th, reported by Karen Sloan of The National Law Journal, begins:

Washington and Lee University School of Law has thrown out its traditional third-year curriculum and replaced it with a series of legal simulations meant to prepare students to practice law in the real world.

First-year students at Duke Law School and the new University of California, Irvine School of Law will take a yearlong course examining different legal careers and the ethical and professional issues associated with those career tracks.

A new LL.M. program at the University of California at Los Angeles School of Law is designed to give recent law school graduates the skills their predecessors would have developed as starting law firm associates.

The movement to incorporate practical skills into legal education isn't new, but legal educators and researchers report that the floundering economy is increasing incentives for law schools to revamp their curricula to prepare students for the realities of the legal profession.

"A lot of the changes are in response to the marketplace," said David Van Zandt, dean of Northwestern University School of Law. "Students are concerned about getting jobs, and everybody wants to be relevant."

See also this just-posted entry in the WSJ Law Blog, headed "The Boldest Move (To Date) in Legal Curriculum Reform?."

If supporters of federal curbs on political campaign spending by corporations were counting on Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to hesitate to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for ruling only very narrowly, the strongest impression was that they had not convinced the two members of the Court thought to be still open to that approach. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.

The trial court did not err when it concluded that Aunt and Uncle are the de facto custodians of the Children. Clear and convincing evidence shows that Mother left the Children in Aunt and Uncle's care for significant periods of time starting in January 2006. The Children lived with Aunt and Uncle fifty percent of the time from January 2006 to February 2007 and sixty to seventy percent of the time from February 2007 to February 2008. During those periods, Aunt and Uncle provided for the care and needs of the Children without financial contribution from Mother. Mother's argument that Aunt and Uncle were merely babysitters is a request that we reweigh the evidence, which we will not do.

And the trial court did not abuse its discretion when it awarded custody of the Children to Aunt and Uncle as de facto custodians. Again, clear and convincing evidence shows that Mother voluntarily relinquished care and control of the Children to Aunt and Uncle for significant periods of time starting in January 2006. Mother's argument challenging the award again amounts to a request that we reweigh the evidence. We cannot. Clear and convincing evidence shows that Mother voluntarily relinquished the Children to Aunt and Uncle and that the affections between the Children and Aunt and Uncle were completely interwoven. Such evidence is sufficient to rebut the presumption that custody should be placed with Aunt and Uncle, as de facto custodians, over Mother, the natural parent.

Finally, Mother has not shown that the trial court applied an incorrect burden for Aunt and Uncle to rebut the presumption that Mother, as the natural parent, should have custody of the Children. While the Decree is silent as to the burden of proof on that issue, as stated above, Mother's abandonment of the Children to Aunt and Uncle was proved by clear and convincing evidence. And the probative evidence and reasonable inferences supporting the judgment show that a reasonable trier of fact could have concluded that the affections of the Children and Aunt and Uncle were completely interwoven. Thus, Aunt and Uncle rebutted the parental presumption by clear and convincing evidence. The trial court did not abuse its discretion when it awarded custody of the Children to Aunt and Uncle. Affirmed.

Terry Rowe appeals the denial of his petition for post-conviction relief for ineffective assistance of counsel. We affirm. * * *

May, J. concurs.
BROWN, J., dissents with separate opinion. [which begins] I respectfully dissent because I conclude that Rowe received ineffective assistance because Rowe's trial counsel did not adequately investigate Rowe's case, told Rowe that he would win, and Rowe rejected the plea agreement based upon his trial counsel's statement that he would win.

Morgan K. Govan appeals his convictions for Class C felony battery and Class A misdemeanor battery for branding his long-term girlfriend with a hot knife and hitting her with a cord. Specifically, he contends that the evidence is insufficient to support his convictions because the charges arose out of sadomasochistic sexual practices to which his girlfriend consented. In Indiana, consent is not a defense to battery in most circumstances. Because the activities in this case involved a deadly weapon, consent is not available as a defense. Furthermore, because Govan admitted to beating his girlfriend with a belt-like object because she had been with another man and lied about it, and his girlfriend locked herself inside a closet, where she tried to kill herself; escaped to her place of employment, where she locked herself inside the building and called 911; told the 911 dispatcher that she wanted to press charges against Govan; told the police that Govan had branded her with a hot knife and struck her with an extension cord (but, notably, did not mention consent); and testified at trial that she did not want to be there and she still had feelings for Govan, the jury was free to conclude that the victim did not consent to battery. We therefore affirm Govan’s convictions for battery.

Joshua Bean v. State of Indiana - "Joshua Bean appeals his convictions for Murder, a felony, and Abuse of a Corpse, a Class D felony, following a jury trial. Bean presents the following issues for review: 1. Whether the trial court abused its discretion when it admitted Bean‟s custodial statement to police. 2. Whether the trial court abused its discretion when it admitted certain evidence under Indiana Evidence Rule 404(b). We affirm."

Appellant-Defendant, Tabitha Lynn Slone (Slone), appeals her conviction for purchasing drugs containing more than three grams of ephedrine, pseudoephedrine, or both within one week, a Class C misdemeanor, Ind. Code § 35-48-4-14.7(d), (i), and the finding that she violated her probation. We reverse.

Slone raises three issues on appeal, which we restate as the following two:
(1) Whether Indiana Code section 35-48-4-14.7 is unconstitutional;
(2) Whether the State presented evidence sufficient to prove beyond a reasonable doubt that she knowingly or intentionally purchased more than three grams of ephedrine, pseudoephedrine, or both within one week. * * *

Slone argues that Indiana Code section 35-48-4-14.7 which prohibits, among other things, the purchase of drugs containing more than three grams of ephedrine, pseudoephedrine, or both within one week is unconstitutionally vague. Additionally, Slone contends that the statute authorizes or encourages arbitrary or discriminatory enforcement. The State responds by contending that Slone waived this issue by failing to file a motion to dismiss advancing the contentions of unconstitutionality, or by failing to raise the issues at all before the trial court.

Addressing the State’s contention of waiver we note that, generally the failure to file a proper motion to dismiss raising a constitutional challenge to a criminal statute waives the issue on appeal. Donaldson v. State, 904 N.E.2d 294, 298 (Ind. Ct. App. 2009). Nevertheless, Indiana appellate courts have considered the constitutionality of statutes even where the defendant failed to file a motion to dismiss. Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). Indeed, our supreme court has even stated that “the constitutionality of a statute may be raised at any stage of the proceeding including raising the issue sua sponte by this Court.” Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992).

However, Slone asks us to base our decision upon her qualified allegation that “[c]onfusion over compliance with I.C. 35-48-4-14.7(d) appears particularly likely because the record suggests the exact total amounts of ephedrine or pseudoephedrine may not be listed in grams on the box of cold medication.” (emphasis added). Further, Slone states in another section of her brief that “the record in this case is silent as to the nature of the labels on those medications.” So, short of violating our prohibition of considering items outside of the record, our decision would be based upon speculation as to what information is contained on packaging of drugs that contain ephedrine and pseudoephedrine. The waiver rule is founded on important policy considerations, including “the preservation of judicial resources, opportunity for full development of the record, utilization of trial court fact-finding expertise, and assurance of a claim being tested by the adversary process.” Hoose v. Doody, 886 N.E.2d 83, 93 (Ind. Ct. App. 2008), trans. denied. Therefore, we conclude that Slone has waived her constitutional challenge, and we are unable to consider her challenge notwithstanding that waiver. * * *

Based on the foregoing, we conclude that Slone waived her opportunity to challenge the constitutionality of Indiana Code section 35-48-4-14.7(d), and we cannot review her claim notwithstanding that waiver because the record was not properly developed before the trial court. Further, we conclude that Slone stipulated to the fact that she had purchased drugs containing more than three grams of pseudoephedrine within one week. However, the State failed to present evidence sufficient to prove beyond a reasonable doubt that she knowingly violated Indiana Code section 35-48-4-14.7(d). Reversed.

U.S. v. Perez (ND Ind., Judge Simon) is a 16-page opinion by Judge Kendall (District Judge for the Northern
District of Illinois, is sitting by designation):

Ramon Perez was indicted
for knowingly possessing with intent to distribute in
excess of 500 grams of cocaine based on a traffic stop
during which the officers recovered a single brick of cocaine weighing 993.9 grams. Perez pleaded guilty to
the charged offense and the district court judge sentenced
him to 135 months’ incarceration based on the
cocaine found during the traffic stop and other drugs
located at his home that were recovered later that day.
Perez claims that the district court judge erred when he
increased his sentence for the drugs retrieved from the
residence. Because we find that the district court judge
correctly included the other drugs as relevant conduct,
we affirm.

This is a consolidated appeal
of the denial of three defendants’ motions to modify
their sentences pursuant to 18 U.S.C. § 3582(c)(2). All
three defendants were indicted, along with others, on
multiple charges in a drug trafficking ring and entered
into plea agreements that included appellate waivers. The
government maintains we should dismiss the appeals because the waiver bars our review. Because we
conclude that § 3582(c)(2) motions do not fall within the
waiver’s scope, we hold that the waivers do not bar the
defendants’ appeals of the denials of their § 3582(c)(2)
motions. However, because we conclude that the district
court did not err in denying the motions, we affirm.

The cultural and religious traditions
of the Forest County Potawatomi Community (“the
Community”) often require the use of pure natural resources derived from a clean environment. Many years
ago, the Community became alarmed by increasing
pollution levels in its lakes, wetlands, and forests. To
remedy this problem, it submitted a request to the Environmental
Protection Agency (“EPA”) to redesignate
certain tribal lands from Class II to Class I status under
the Prevention of Significant Deterioration (“PSD”) program
of the Clean Air Act (“the Act”). This would have
the effect of imposing stricter air quality controls on
emitting sources in and around the Community’s
redesignated lands.

After nearly fifteen years of administrative proceedings
and dispute resolution efforts between the Community
and neighboring Wisconsin (which were successful) and
Michigan (which were not), the EPA promulgated a final
ruling redesignating the Community’s lands to Class I
status. It also issued two companion announcements
concluding dispute resolution proceedings with Wisconsin
and Michigan. Michigan seeks review of these
three final administrative rulings. It asserts that the EPA
pursued the redesignation in an improper manner
and, as a result, needlessly complicated Michigan’s air
quality control programs. Because Michigan lacks
standing to pursue these claims, we dismiss its petition
for review. * * *

The Community has waited over fifteen years for
finality on the redesignation of its lands. Michigan’s
challenge to the EPA’s redesignation actions raises
some important issues about the PSD program’s
regulatory structure, but Michigan has failed to allege a
cognizable injury in fact and thus lacks standing to
pursue this case. As a result, the Community need not
wait any longer.
We DISMISS the petition for review.

Ind. Decisions - "Man convicted in 1982 slaying to be retried"

ANDERSON — An Anderson man who has spent nearly 26 years on death row will be retried after court sent the long-appealed case back to Madison County.

Mark Allen Wisehart, 45, was convicted of murder and sentenced to death in 1983 in the killing of Marjorie Johnson in her Anderson home.
The 7th U.S. Circuit Court of Appeals in Chicago ruled in 2005 that a jury might have been prejudiced by comments that Wisehart had been offered a polygraph test. The Indiana Attorney General’s office had appealed the case to the U.S. Supreme Court, but justices refused to reconsider reinstating Wisehart’s conviction and sentence.

In May, the case was remanded for a new trial in Madison County, and subsequently was assigned to Superior Court 1 Judge Dennis Carroll.

No court date has been set. Jeff Lockwood and Eric Koselke last month were appointed to defend Wisehart. Koselke filed a sealed request for the court to approve funds to hire an investigator, but the court has not acted on the motion.

Attorneys representing Wisehart and prosecutors could not be reached for comment Tuesday.

Wisehart was convicted in Madison Superior Court 3 before Judge Thomas Newman, who still presides.

Along with the capital conviction for murder, Wisehart also was convicted of robbery, burglary and theft. He was accused of breaking into Johnson’s home, beating and stabbing her to death, and taking $14.

Wisehart was living at the Christian Center in Anderson at the time of Johnson’s killing. He is the longest-serving of the 17 prisoners on Indiana’s death row in Michigan City.

Back in 1994 it would have been relatively easy to call the juror as a witness and ask her to explain her reaction to learning about the polygraph test, though she might have forgotten because the trial had been conducted in 1983. It will be all the more difficult today to reconstruct an incident now more than twenty years in the past. But it was the state’s burden, given the juror’s affidavit, to present evidence that the jury’s deliberations had not been poisoned by the reference to Wisehart’s having been given a polygraph test.

The entry also quotes from a March 28, 2006 AP story:

WASHINGTON -- The U.S. Supreme Court refused yesterday to consider reinstating the conviction and death sentence of a man who spent more than 20 years on Indiana's death row.

The 7th Circuit U.S. Court of Appeals in Chicago last year overturned the 1983 murder conviction of Mark Allen Wisehart of Anderson. It ruled that a trial judge should have taken steps to determine whether one juror's knowledge of a polygraph test had tainted the verdict.

The state attorney general's office had appealed to the U.S. Supreme Court, but the justices declined without comment to review the case.

This entry from March 29, 2006 quotes from a story by Charles Wilson of the AP. Here are some snippits -- the story is exploring "what may happen now?"

A decade-old affidavit that was key to overturning an Indiana death row inmate's murder conviction could be used to reinstate that sentence if prosecutors can prove the juror who signed it was misled. * * *

Madison County Prosecutor Rodney Cummings said Wednesday he would recommend the state attorney general's office pursue the hearing to determine if jurors were biased. * * *

During a postconviction relief hearing in 1994, attorneys presented an affidavit signed by one of the jurors saying that when she reported for jury duty she was told court would not be held that day because Wisehart was scheduled to take a polygraph test. The juror was not called to testify at the hearing.

Wisehart then appealed, but the Indiana Supreme Court said he had not shown any evidence that a single juror's knowledge of the polygraph test had swayed the entire jury.

However, the 7th U.S. Circuit Court of Appeals last year set aside Wisehart's conviction, saying the judge should have done more to investigate possible jury bias. The U.S. Supreme Court on Monday declined to hear the case. * * *

The Indiana Attorney General's office has 30 days in which to decide a course of action, said spokeswoman Staci Schneider. She said the office would consult Cummings before making a decision.

A fact-finding hearing would cause much less delay than trying to mount a new murder trial 20 years after the crime, Cummings said. If the judge decided the affidavit was invalid, Wisehart's attorneys likely would file another appeal and the case would again go before the state and federal courts.

A new rule proposed by San Francisco Superior Court would remind potential jurors not to blog, Tweet or conduct Internet research about cases.

A need for the rule change, which is open for public comment starting today, became clear to the court during a jury selection episode on a weeks-long criminal trial in late June, when an entire panel of 600 jurors had to be excused.

"The court continues to make all efforts possible to recognize the value of jurors' time and to not needlessly use up or expend jury panels," Presiding Judge James McBride said.

During voir dire on that case in late June, one potential juror's responses made it sound as though he knew quite a bit about the case, prompting Judge Donald Mitchell and the lawyers to talk with him in chambers, said Patricia Kilkenny, deputy jury commissioner for the court. The man said he had done Internet research, and when the judge questioned him about it, he replied that he hadn't been ordered not to do so.

When the rest of the potential jurors were questioned, several raised their hands to acknowledge they had also done some Internet investigation on the case, Kilkenny said. Among them, one hadn't remembered being told not to do outside research, while another didn't understand that the admonishment included research on the Internet.

In researching the problem, Mitchell found that though the jurors had been verbally admonished, they hadn't gotten a cover sheet with a written admonishment attached to their questionnaires, Kilkenny said. Currently, juror questionnaires typically include cover sheets, but their content is up to the judge and attorneys. Cover sheets vary and don't always include the written admonishment about discussing or researching the case. * * *

A draft of the civil questionnaire cover sheet the court provided to The Recorder reads: "You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information."

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the May 22nd list.

Over 5 1/2 years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

In your posting regarding the call for Amicus briefs on the issue of using scored instruments for sentencing it showed that the Indiana Judicial Center requested leave to file an Amicus brief. Does anyone wonder or question whether an agency of the Supreme Court should appear as Amicus in a Supreme Court case?

Courts - Three federal court decisions in the news today

"State Discriminated Against Mentally Ill, Judge Rules" is the headline to this NY Timesstory by James Barron. Some quotes:

New York State had discriminated against thousands of mentally ill people by leaving them in privately run adult homes, which are usually larger than the disgraced psychiatric hospitals they were intended to replace, a federal judge ruled in a decision released on Tuesday morning.

udge Nicholas G. Garaufis ruled that the state was violating the Americans with Disabilities Act by housing more than 4,300 mentally ill people in sprawling and often poorly run homes. He said the residents are essentially warehoused with little hope of mingling with others in the wider community.

Judge Garaufis wrote in a 210-page decision that the state had “denied thousands of individuals with mental illness in New York City the opportunity to receive services in the most integrated setting appropriate to their needs.” He also said the state had failed to show that reforms proposed by the nonprofit group that filed the case “would constitute a ‘fundamental alteration’ of the state’s mental health service system.” * * *

The adult home system took shape in the 1960s and 1970s, when New York shut down large state-run psychiatric hospitals as part of what became known as deinstitutionalization. State officials turned to profit-making adult homes because little had been done to prepare for housing the patients once they had been discharged from the psychiatric wards. Federal disability money was to pay for the homes and the meals and activities they would provide. The homes were responsible for bringing in outside psychiatrists and doctors.

Disability Advocates filed the lawsuit in 2003 after a series in The New York Times described conditions in adult homes based on a review of more than 5,000 pages of annual state inspection reports and 200 interviews with workers, residents and family members. The Times’s investigation found a number of systemic problems, including untrained workers and gaps in supervision.

"Release of 46,000 inmates challenged" is the heading of this entry by Lyle Denniston of SCOTUSBlog. It begins:

California officials have asked the Supreme Court to put on hold a federal court’s order that will require the release of some 46,000 inmates from state prisons over two years, to relieve “unprecedented overcrowding.” In a stay application (09A234) filed Friday, Gov. Arnold Schwarzenegger and other state officials argued that the order will “divert state legislative and executive attention from state-initiated prison reform at a time when it is needed the most.” The application was filed with Justice Anthony M. Kennedy, Circuit Justice for the Ninth Circuit. He can decide the issue on his own, or share it with his colleagues.

“Every day that the [release] order hangs over California, it places enormous strains on the state’s existing resources and creates intolerable anxiety for both officials and residents of the nation’s most populous State,” the application said.

The case involves the Aug. 9 ruling of a three-judge U.S. District Court, finding serious overcrowding in the state’s prison system that, it said, threatens the health and safety of men and women who work in those facilities as well as the inmates housed in them.

A federal appeals court today in Washington, ruling unanimously in favor of greater transparency in government, upheld the constitutionality of a reform law that requires associations to publicly disclose certain members who are active participants in lobbying.

The National Association of Manufacturers, a regular lobbyist on issues that include global warming and nuclear power, challenged the constitutionality of the Honest Leadership and Open Government Act of 2007 in a suit filed last year in the U.S. District Court for the District of Columbia.

Among other things, lawyers for NAM argued that membership disclosure requirements would discourage some members from participating in public policy initiatives. The suit was dismissed. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today upheld the dismissal.

More than fifty years ago, the Supreme Court held that the public disclosure of “who is being hired, who is putting up the money, and how much” they are spending to influence legislation is “a vital national interest.” United States v. Harriss, 347 U.S. 612, 625-26 (1954). Today, we consider a constitutional challenge to Congress’ latest effort to ensure greater transparency, the Honest Leadership and Open Government Act of 2007. Because nothing has transpired in the last half century to suggest that the national interest in public disclosure of lobbying information is any less vital than it was when the Supreme Court first considered the issue, we reject that challenge.

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

Based upon our review of the record, we conclude that evidence of probative value existed from which the trial court could have determined that Powell had constructive possession of the marijuana and methamphetamine discovered in the vehicle. See, e.g., Von Hauger v. State, 254 Ind. 297, 298, 258 N.E.2d 847, 848 (1970) (holding that evidence was sufficient to convict defendant for possession of marijuana where a police officer upon approaching the car had observed the defendant placing something on the floor under the seat and the officer found the marijuana in that location even though there were two persons in the vehicle and the State never established that the defendant was the owner of the automobile); Holmes v. State, 785 N.E.2d 658, 662 (Ind. Ct. App. 2003) (holding that the State presented sufficient evidence to convict the defendant based in part upon defendant s close proximity to marijuana found under the driver s seat of a vehicle). Accordingly, we conclude that the State presented evidence sufficient to support Powell's convictions for possession of marijuana and a controlled substance.

For the foregoing reasons, we affirm Powell's convictions for possession of marijuana as a class D felony and possession of a controlled substance as class D felony.

Carole Baker, as personal representative of the Estate of Harry Rickert, appeals the trial court’s judgment awarding ownership of certain joint accounts to Keta Taylor. She argues the trial court incorrectly presumed Taylor was entitled to funds in joint accounts that had been in Taylor and Rickert’s names. We reverse and remand. * * *

The trial court erred in concluding Taylor was presumptively entitled to survivorship rights in the challenged accounts she created and in requiring the Estate to rebut that presumption by clear and convincing evidence. Taylor’s proffered testimony was properly excluded. We accordingly reverse and remand for further proceedings consistent with this opinion. Reversed and remanded.

BAKER, C.J., concurs.
BARNES, J., dissenting with separate opinion. I respectfully dissent. At the outset, however, I wish to emphasize that I am highly sympathetic to the result reached by the majority. If we were writing on a blank slate I would agree with that result. We are not writing on a blank slate. As an intermediate appellate court, we must follow precedent set by our supreme court, even if we do not agree with it. See Horn v. Hendrickson, 824 N.E.2d 690, 694-95 (Ind. Ct. App. 2005). That said, I simply am convinced that our supreme court’s Banko decision is binding precedent we must follow. * * *

I am keenly aware that an unscrupulous caregiver, armed with a power of attorney, could finagle joint tenancy accounts in a way that results in a gross injustice. Under Banko’s interpretation of the NPTA, however, courts essentially must presume that a joint tenancy account was scrupulously created, no matter who created it and regardless of whether one person to the account was even aware of its creation. I would urge our supreme court to reconsider Banko’s breadth, or alternatively urge the General Assembly to enact legislation that would exempt situations such as the one in this case from the NPTA’s application. Unless and until that happens, however, we must apply the NPTA as Banko interpreted it. Under that interpretation, I believe we have no choice but to affirm the judgment of the trial court.

M.L.S. appeals the probate court’s ruling denying her petition to adopt minor children A.S., D.S., C.S., and J.S. (collectively, “the Children”) and granting the petition to adopt the Children filed by cross-petitioners V.S. and L.S. The probate court judge who heard evidence and argument in the adoption case passed away before issuing a final ruling. Although the parties in such a situation are generally entitled to a new trial, M.L.S. waived her objection to the replacement judge’s authority to issue a final ruling in this case. After the biological parents and the Marion County Department of Child Services (“MCDCS”) had executed consents allowing M.L.S. to adopt the Children, one of M.L.S.’s adopted children who lived in the home was alleged to be a juvenile delinquent for committing three counts of child molesting. MCDCS removed the Children and placed them in the home of V.S. and L.S. MCDCS and the Children’s biological parents subsequently executed consents allowing V.S. and L.S. to adopt the Children. We conclude that there is no basis under the statutes governing adoption or public policy to prohibit the execution of subsequent consents. Finally, we conclude that the evidence in this case supports the adoption decree in favor of V.S. and L.S. We affirm.

On March 10, 2009, Smith filed a complaint against John Roberts in his official capacity as Chief Justice of the United States Supreme Court. His complaint alleges there is a Star of David carved into the Supreme Court building and “alleges that Roberts has acted negligently in his officials [sic] duties by allowing and continuely [sic] establishing, advocating, and advancing the Jewish religion in violation of the First Amendment to the United States Constitution of America [sic].” The complaint states Smith is bringing his claim under the Federal Tort Claims Act and the Indiana Tort Claims Act. Smith asked the court to “declare that the displayal [sic] of the six-pointed Star of David violates the Establishment Clause of the First Amendment to the United States Constitution of America [sic], and that Roberts was negligent in his duties” and to “order the removal of the six-pointed Star of David from the United States Supreme Court.” * * *

In his brief, Smith concedes he has not stated a claim on which relief can be granted under the Indiana Tort Claims Act. Smith further concedes: [I do agree with the trial court that Roberts could not be liable under the Federal Tort Claims Act, because the FTCA prohibits suing individuals.]

It is not clear what aspect of his claim Smith believes still stands after these concessions. Assuming arguendo he has stated an otherwise valid claim alleging a violation of the Establishment Clause, he cites no authority that Indiana courts can grant him relief against the Supreme Court of the United States. He argues that state courts have jurisdiction to hear cases involving federal questions, which certainly is true. See, e.g., Green v. Hendrickson Publishers, Inc., 770 N.E.2d 784, 790 (Ind. 2002). However, that does not mean Indiana courts can grant him effective relief against the Supreme Court of the United States, which is the ultimate authority on federal questions. Therefore, the trial court did not abuse its discretion by denying Smith’s motion to correct error. Affirmed.

Eric D. Smith v. Jeffrey Wrigley, Edwin G. Buss, James Wynn (NFP) - "Eric D. Smith filed a complaint under 42 U.S.C. § 1983 against Jeffrey Wrigley, the superintendent of New Castle Correctional Facility; Edwin G. Buss, the commissioner of the Department of Correction; and James Wynn, the director of classification for the Department of Correction. The trial court determined his complaint was frivolous and dismissed it. We affirm."

John C. Cole, Jr. v. Bruce Lemmon and Edwin Buss (NFP) - "John Cole Jr. brought a small claims action against Bruce Lemmon and Edwin Buss after a correctional officer dropped Cole’s television and broke it while moving Cole and his property to another facility. The trial court dismissed his complaint as frivolous. We affirm."

Morgan Manufacturing v. The Dallas Group of America, Inc. (NFP) - "Because there is no evidence regarding essential elements in the alleged oral agreement between the parties, and because the agreement is, in part, illusory, we cannot
say that the trial court abused its discretion in determining, based solely upon evidence introduced by Morgan Manufacturing, that no oral contract was formed. * * *

"Morgan Manufacturing asks us to engage in supposition, not to evaluate evidence and reasonable inferences. There is no unjust enrichment here; thus, there is no quasi contract. * * *

"Morgan Manufacturing also asserts that the Dallas Group took what it learned from the relationship and left Morgan Manufacturing in the lurch. As we discussed above, there is no evidence or inference therefrom to show that the Dallas Group violated any duty owed to Morgan Manufacturing or that the Dallas Group used Morgan Manufacturing to gain knowledge for its advantage. As the trial court undoubtedly recognized, there must be evidence from which a reasonable inference of a breach of fiduciary duty can be drawn. Mere supposition is not enough."

Schmidt Automotive, Inc. v. Cozetta Rucker (NFP) - "The trial court neither based its award upon the breach of a contract nor upon the breach of a warranty. Rather, the trial court’s damage award was based upon Schmidt’s failure to properly diagnose and repair Rucker’s vehicle. As the evidence discloses, Rucker took her vehicle to Schmidt with concerns that the engine light was on and the vehicle was jerking and missing. Schmidt replaced the engine, and Rucker continued to experience the same problems with the vehicle. Schmidt made further minor repairs, and Rucker still returned with the same concerns. Schmidt again made repairs, and Rucker continued to experience the same issues. After three unsuccessful attempts by Schmidt to diagnose and repair Rucker’s vehicle, Rucker took her vehicle to a different repair shop that replaced the fuel injectors, which solved the problem. Thus, the trial court awarded $4,485.87 to Rucker, which is the amount Rucker paid to Schmidt for the remanufactured engine because the evidence shows that the new engine did not solve the problem that Rucker requested Schmidt to diagnose and repair. Moreover, the evidence creates the inference that the engine replacement was not necessary.

"Based upon the foregoing discussion and decision, we conclude that the evidence supports the trial court’s findings and the findings support the judgment."

Ind. Decisions - One today from the Supreme Court

The plaintiffs allege their son was given a fatal overdose of pain medication by a nurse after a surgical procedure. The plaintiffs sued the manufacturers and distributors of the medicine cup used to administer the medication, alleging defects in design of the cup and failure to warn that the cup was not suitable for precision measurement. We affirm summary judgment in favor of these defendants because these claimed defects did not cause the death. The undisputed facts establish that if an overdose caused the death it was due to a quantity of drug essentially double the prescribed amount. None of the claimed defects in the cup would have caused an overdose of that magnitude. * * *

The Kovachs assert four claims against the Cup Defendants, described as strict products liability and negligent products liability under the Indiana Product Liability Act (“PLA”), and breach of implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose under the Uniform Commercial Code (“UCC”). The Court of Appeals concluded that the UCC and PLA provide “alternative remedies,” and it therefore entertained all four of the Kovachs’ claims as separate theories. * * * We find the causation issue in this case dispositive as to all causes of action. We therefore do not resolve the relationship between the PLA and the UCC today, as that issue is directly raised only by amici, and presented obliquely, if at all, by the parties. We also do not address several collateral issues that the parties have raised in this appeal. * * *

The plaintiffs argue that if the medicine cup had been better suited as a precision measuring device or had contained a warning that it was not suitable for precision measurement, Matthew would not have received an overdose. We agree with Chief Judge Baker that the undisputed facts establish that there is no such causal connection. * * *

Here, the Kovachs claim that the medicine cup should have borne a warning that it was not designed for precision measurement. If we apply the read-and-heed presumption, then we must assume the nurse would have read such a warning and chosen a precision applicator to administrate the codeine. But as explained above, Matthew’s overdose was not the result of imprecise measurement. If the overdose was the cause of death, it was due to mistaken dispensation of a full cup, a 30-mL double dosage, by a nurse who knew that a half cup, 15 mL, was the proper dosage. Matthew’s death was not factually caused by the danger that a warning against use of the cup for precision measurement would have addressed, and the accident would not have been avoided if any such warning had been given.

Conclusion: For the foregoing reasons, the Cup Defendants have established that Matthew’s death was not caused by the alleged defects in their product. The judgment of the trial court granting summary judgment in favor of the Cup Defendants is affirmed.

Accompanying the grant was this Order Directing Addional Briefing and Inviting Amicus Participation. Access it here. From the Order:

The Court is interested in Appellant's argument that the trial court abused its discretion in
relying on "scoring models" (in this case, the Level of Service Inventory-Revised ("LSlR") and
Substance Abuse Subtle Screening Inventory ("SASSI") in determining the sentence. Appellant
relies primarily on Rhodes v. State, 896 N.E.2d 1193, 1195 (Ind. Ct. App. 2008), trans. not
sought. This issue was not fully developed in the parties' briefs and may be a legal issue of
wider interest.

The Court now issues this invitation for participation of amicus curiae to address a trial
court's reliance on scoring models in sentencing. Those entities willing to prepare and file a
brief as amicus curiae on the issue are requested to file a motion on or before September 4,
2009 seeking leave to appear as amicus curiae. The Court encourages the submission of joint
briefs. Briefs submitted by those granted amicus curiae status will be due on or before
September 21, 2009. * * *

In addition, the parties shall file supplemental briefs by September 21, 2009 with
more fully developed argument on the use of scoring models in sentencing.

So who has indicated an intent to file an amicus brief? According to the Clerk's Docket:

Ind. Decisions - Certainly we haven't heard the last of: "Apparently there are all sorts of surprises in the special session budget"

The headline to Tim Evans' story today in the Indianapolis Star is "New law lets DCS decide out-of-state placements." More correctly, it would be "Revision of a few words in a subsection ..."

Specifically, during the 2009 Special Session of the Indiana General Assembly, IC 31-40-1-2(f) was amended as follows:

(f) The department is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement does not comply with the conditions stated in IC 31-34-20-1(b) or IC 31-37-19-3(b).is not recommended or approved by the director of the department or the director's designee.

This has been criticized as "an 11th-hour insertion" into the special session budget [via PL 182-2009(ss), SECTION 387], passed June 31st and effective July 1st - there was no opportunity for public input and one doubts that most legislators were aware of the change or its implications.

Of course the constitutional "one subject" requirement was intended to protect against the type of action. These is at least one case currently pending before our Supreme Court involving similar last minute additions to the "budget bill" in an earlier year. But the Courts has consistently avoided addressing this problem, claiming that "separation of powers" ties its hands.

From the lengthy Star story today:

A last-minute change to Indiana law enacted during the legislature's special session in June essentially has shifted all future decisions on out-of-state placements to the DCS director.

The change in state law came after DCS lost a Supreme Court decision in April that gave more deference to judges in making placement decisions when there is a dispute about who should pay.

Whether the new approach is good or bad for Hoosier children -- about 150 are sent to out-of-state programs each year -- is a matter of debate.

Opponents say it could lead to costly decisions not always in the best interest of the child, but others believe it's generally a bad idea to move children far away from home. DCS is less likely than the court to ship children out of state.

DCS Director James Payne acknowledged the Supreme Court ruling in April was a factor in seeking the new law. Because the state now is paying for services, he said, "it was anticipated a DCS recommendation would carry extra consideration."

But, Payne emphasized, the change was driven more by what's best for Hoosier children -- keeping them closer to home, their caseworkers and family connections -- and the importance of supporting Indiana businesses during tough economic times.

Payne said looking only at initial costs can be misleading. He explained an out-of-state facility might have a lower daily rate, but the overall cost could still be higher because of travel, the length of stay and the need for additional services when the child returns to Indiana.

Economic considerations, he acknowledged, also must be factored into decisions.

"Why would we be sending Indiana tax dollars to other states if we have the appropriate services here?" Payne said, adding that the array of programs available in Indiana is adequate.

Technically, judges can still over-rule DCS and send a youth to another state for treatment, but without the agency's approval, the child's home county must bear the cost. And since the $600 million cost of child-welfare services was shifted from counties to the state this year, most counties no longer have budgets to pay those costs. * * *

[St. Joseph County Probate Judge Peter Nemeth] also has a gripe with how the change was made. He said such a critical issue should not be decided in a late-night meeting of a legislative committee without debate or public input -- and it might have been based on bad information.

"One of the driving factors for the change, as I understand it, was that for some reason, legislators had the idea judges were driving the increase in expenditures for children's services, which I don't think is true," he said.

Nemeth said he believes most judges are being fiscally responsible while also watching out for the best interests of children.

That's what he was doing, he believes, when he recently decided to send a teen to a specialized drug-treatment facility in Iowa.

DCS disagreed, but the Indiana Court of Appeals last week agreed with Nemeth, who had found the DCS recommendation was more costly and "contrary to the welfare and best interest of the child."

That case and the Madison County one that went before the Supreme Court were initiated before the new law took effect July 1.

Environment - A number of recent Indiana environmental stories [Updated]

"Meeting set on closure of waste acid lagoons" - from the Sept. 1stGary Post-Tribune

"Waste lagoon ruling close: Public review continues on U.S. Steel plan; state to decide by end of year." - from the Sept. 3rdGary Post-Tribune

"Utility denies damaging park with Bailly water" - - from the Sept. 6thGary Post-Tribune, a lengthy story by Gitte Laasby that begins:

BURNS HARBOR -- Northern Indiana Public Service Co. is in hot water with the Indiana Dunes National Lakeshore because of a warm water discharge from the Bailly Generating Station.

The discharge has eroded away 500 feet of Indiana Dunes National Lakeshore shoreline along with beach and wildlife habitat over a quarter mile. It also heats up the lake water.

"People go out there and use it as a hot tub in the winter," said Lynda Lancaster, spokeswoman for the National Lakeshore.

NIPSCO, which denies damaging the park, has a permit to discharge treated cooling water from the Bailly station over an easement into Lake Michigan. Until recent years, the discharge flowed north in a straight line.

Now the waist-high stream has grown more than 200 feet wide and meanders more than a quarter of a mile northeast onto Indiana Dunes National Lakeshore property.

Along the way, it has eroded the dunes, which have turned into cliffs up to 8 feet tall.

"The ... lack of attention to this matter has turned what was once a sandy beach within the national lakeshore into an industrial effluent outflow site," wrote Indiana Dunes National Lakeshore Superintendent Constantine Dillon in a pointed letter to NIPSCO on March 12.

"This constitutes a loss of habitat for wildlife, destruction of sandy beach for visitor use, and the unauthorized conversion of federal property from public use to use by private industry," Dillon wrote.

From the Indianapolis Star:

"Coal group's opposition to climate-change bill sparks Duke's departure" - a Sept. 8th story by Robert Annis that begins:

In July, the American Coalition for Clean Coal Electricity found itself in hot water when its lobbying firm, Bonner and Associates, was caught forging letters from Virginia minority groups to Rep. Tom Perriello, D-Va., urging him to oppose the American Clean Energy and Security Act.
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The coalition later denied knowing about the forgeries until after the fact, but Duke Indiana spokesman Lew Middleton said last week the actions of some members of the coalition weren't consistent with Duke's efforts to "pass economy-wide, cost-effective legislation as soon as possible."

"Judge rules site's former owners must pay cleanup costs" - a Sept. 8th story by Jon Murray. Some quotes:

A bright blue structure behind a fence along an industrial stretch of Dr. Andrew J. Brown Avenue doesn't look like much more than a hulking box.

But neighbors light up at mention of the year-old building because they remember the ugly sight -- and the pungent smell -- it replaced. Three years ago, an abandoned, decaying brick foundry and the deeply contaminated soil beneath prompted picketing along the street and a cleanup effort by the city. * * *

Now the city's fight has moved into the courts, and a recent ruling by a Marion County judge has bolstered its efforts to force the property's former owner, Ertel Manufacturing Corp. -- through its insurers -- to pay for millions in cleanup costs.

Ertel's buildings once stood in the middle of a clutch of industrial businesses and churches in the working-class neighborhood northeast of Downtown Indianapolis. * * *

When the city took over the site, old insurance documents found inside provided a legal avenue to seek collection of an estimated $5 million in assessment and cleanup costs. In a key ruling Aug. 20, Judge Michael Keele found Ertel liable under Indiana's environmental legal action statute; he has not yet assessed costs. * * *

[Jon] Mayes, the city attorney, said the city plans to ask Keele's court to consider the costs of further monitoring in the area as part of Ertel's liability. He said the city wants to earn "a clean bill of health" from state and federal environmental regulators.

Updated with more stories:

"Pork farmer pays for Randolph County fish kill" - Seth Slabaugh reports in the Muncie Star-Press in a story that begins:

UNION CITY -- A pork producer whose manure killed nearly 50,000 fish in the Little Mississinewa River has agreed to reimburse the Indiana Department of Natural Resources $13,696.

Rick Kremer, Ansonia, Ohio, also agreed to pay the Indiana Department of Environmental Management a civil penalty of $2,800 and to complete three supplemental environmental projects estimated to cost $83,344.

State conservation officers observed dead fish over an eight-mile length of the river in August 2008 after Kremer land applied manure when soil and weather conditions were unsuitable.

A scientifically sound and court-defensible statistical formula was used to estimate that 46,962 fish were killed, said Phil Bloom, spokesman for the DNR. Species included bass, bluegill, carp, catfish, creek chub, darters, minnows, stonerollers and suckers.

Damages were determined using American Fisheries Society guidelines that calculate the average cost for a hatchery to raise a fish of the same species to the same size.

"All fish have a value," Bloom said. "The larger the fish, the more it's worth."

Ind. Law - It's the Law: Part 3 of "Death penalty explained in three parts"

Ken Kosky's "It's the Law"column in the NWI Times this week is the final of a three-part series on the death penalty. ( Part 1 is here, Part 2 is here.) This Monday's column looks at Indiana's death row and is headed "Indiana's death row not crowded":

Many people think Indiana's death row is filled with dozens of offenders -- a high percentage of them minorities -- who are executed on a regular basis.

But despite the death penalty in Indiana, few people are on death row.

Only 14 people were on Indiana's death row as of July 1, according to Clark County Prosecutor Steve Stewart's book "Death Row 2009. Capital Punishment in Indiana." Stewart is an expert in the death penalty.

Thirteen of the death row inmates are men and one is a woman. Eleven are white and three are black, according to the book.

On death row for the longest period is Lake County's Debra Denise Brown, who has been on death row for more than 23 years. The person with the least amount of time on death row has been there for more than a year and a half. The average length of time on death row is about 10 years.

The books states that since Jan. 25, 2008, no Indiana jury trial has resulted in a death sentence -- although one inmate was added to death row July 1, 2008, as a result of a successful state appeal.

Since June 15, 2007, no Indiana death row inmates have been executed.

Statistics show only two people have received death sentences in Indiana in the past four years -- an average of one every two years. But in the previous 30 years, there were an average of three and a half per year.

As The Times reported previously, it costs 10 times more to conduct a death penalty trial than a standard murder trial, and death penalty cases are heavily scrutinized in the appeals process. Those factors have led to a decrease in death penalty cases, Stewart said.

Other interesting facts from Stewart's book:

-- The youngest person on death row now is 29, but the youngest person on death row since 1977 was 16. The oldest person now on death row is 60, but the oldest on death row since 1977 was 75.

-- Since 1977, 67 percent of death row inmates have been white, 31 percent black and 2 percent Hispanic; 96 percent have been male and 4 percent female.

-- The 94 defendants sentenced to death since 1977 have accounted for 153 murders. The defendants killed 37 family members, 37 friends or acquaintances, six employers or coworkers, five neighbors, 10 police officers and 58 strangers. Shooting was the most common method, followed by stabbing, strangling, bludgeoning, stomping, drowning, burning and other methods.

-- Lake (with 22) and Marion (with 21) are the counties with the most death sentences.

-- Since 1900, 89 men (65 white and 24 black) and no women have been executed in Indiana. Since 1977, 19 men (16 white and three black) have been executed.

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 9/7/09):

Friday, September 11th

9:00 AM - State v. Allan M. Schlechty - The Jay Superior Court granted Schlechty’s motion to suppress evidence obtained during a search of his vehicle by his probation officer. The Court of Appeals affirmed in a not-for-publication Memorandum Decision, State v. Schlechty (Ind. Ct. App. 2/12/2009). The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Here is the ILB summary of the 2-1 NFP opinion.]

9:45 AM - Eric P. Sibbing v. Amanda N. Cave - Cave filed a personal injury complaint against Sibbing in the Marion Superior Court. Sibbing admitted fault, but disputed damages. A jury returned a damages award for Cave. Sibbing appealed. The Court of Appeals affirmed, concluding it did not appear the trial court erred in permitting Cave to testify concerning what a doctor told Cave about her condition and that regardless, any error in the admission of this testimony was harmless. The Court of Appeals also found no error in the exclusion of an expert's testimony that some treatment received by Cave was medically unnecessary. Sibbing v. Cave, 901 N.E.2d 1155 (Ind. Ct. App. 3/5/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Note: Here is the ILB summary of the 2-1 COA opinion.]

10:30 AM - Joseph J. Reiswerg v. Pam Statom - In a legal malpractice action, Pam Statom sought partial summary judgment against her former attorney Joseph Reiswerg and the law firm of Cohen Garelick & Glazier. The trial court granted Statom's motion against Reiswerg but denied the motion against the firm. After Reiswerg and the firm subsequently filed motions for summary judgment, alleging Statom's claims were time-barred, Statom sought to strike those summary judgment motions. The trial court granted the motion to strike, finding Reiswerg and the firm had waived their statute-of-limitations defense by not raising it in opposition to Statom's partial summary judgment motion. The trial court also purported to enter final judgment in favor of Statom and against Reiswerg. On consolidated appeals, the Court of Appeals dismissed in part, affirmed in part, reversed in part, and remanded. Reiswerg v. Statom, 897 N.E.2d 490 (Ind. Ct. App. 12/5/2008), aff'd on reh'g, 901 N.E.2d 1168 (3/5/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Here is the the ILB summary of Dec. 5, 2008 COA opinion and the March 5th ruling on the petition for rehearing. From the Dec. 5th opinion: "In this consolidated appeal, Joseph J. Reiswerg appeals the trial court’s grant of partial summary judgment to Pam Statom in her legal malpractice action, and both Reiswerg and Cohen Garelick & Glazier (“CGG”) appeal the trial court’s order striking their motions for summary judgment, which raised statute of limitations defenses." Note that Appellant Joseph J. Reiswerg's Petition for Transfer was GRANTED and Appellee Pam Statom's Petition for Transfer was DENIED.]

Next week's oral arguments before the Supreme Court (week of 9/14/09):

Next Tuesday, September 15th

9:00 AM - Indianapolis Marion County Pub. Library v. Charlier Clark & Linard, P.C. - When the Library brought negligence claims against engineering subcontractors involved in the construction of a new parking garage, the Boone Circuit Court entered an order granting the subcontractors summary judgment, concluding that such claims were precluded by the “economic loss” doctrine. The Court of Appeals affirmed. Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 900 N.E.2d 801 (Ind. Ct. App. 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [For background, start with this July 25th ILB entry.]

9:45 AM - Gloria A. Murray v. City of Lawrenceburg - Plaintiffs, who are various persons claiming an interest in a small parcel of land underneath the docking site of a riverboat casino, filed a six-count complaint against the owner of the casino, the City of Lawrenceburg, and the Lawrenceburg Conservancy District. The trial court denied Defendants’ motion for judgment on the pleadings, and also denied Plaintiffs’ demand for jury trial. On interlocutory appeal, the Court of Appeals affirmed the denial of Defendants’ motion for judgment on the pleadings, held that Plaintiffs were entitled to jury trial on some of their six counts, and remanded with instructions to resolve the timeliness of Plaintiffs’ claims. Murray v. City of Lawrenceburg, 903 N.E.2d 93 (Ind. Ct. App. 3/19/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [Note: Here is the ILB summary of the 2-1 COA opinion.]

Monday, September 07, 2009

Law - Sex offender laws in the news

"Unjust and ineffective: America has pioneered the harsh punishment of sex offenders. Does it work?" is the title to a lengthy briefing, datelined Harlem Georgia, in the Aug. 6th Economist. A quote:

Georgia has more than 17,000 registered sex offenders. Some are highly dangerous. But many are not. And it is fiendishly hard for anyone browsing the registry to tell the one from the other. The Georgia Sex Offender Registration Review Board, an official body, assessed a sample of offenders on the registry last year and concluded that 65% of them posed little threat. Another 30% were potentially threatening, and 5% were clearly dangerous. The board recommended that the first group be allowed to live and work wherever they liked. The second group could reasonably be barred from living or working in certain places, said the board, and the third group should be subject to tight restrictions and a lifetime of monitoring. A very small number “just over 100” are classified as “predators”, which means they have a compulsion to commit sex offences. When not in jail, predators must wear ankle bracelets that track where they are.

Despite the board’s findings, non-violent offenders remain listed and subject to a giant cobweb of controls. One rule, championed by Georgia’s House majority leader, banned them from living within 1,000 feet of a school bus stop. This proved unworkable. Thomas Brown, the sheriff of DeKalb county near Atlanta, mapped the bus stops in his patch and realised that he would have to evict all 490 of the sex offenders living there. Other than the bottom of a lake or the middle of a forest, there was hardly anywhere in Georgia for them to live legally. In the end Georgia’s courts stepped in and suspended the bus-stop rule, along with another barring sex offenders from volunteering in churches. But most other restrictions remain.

Sex-offender registries are popular. Rape and child molestation are terrible crimes that can traumatise their victims for life. All parents want to protect their children from sexual predators, so politicians can nearly always win votes by promising curbs on them. Those who object can be called soft on child-molesters, a label most politicians would rather avoid. This creates a ratchet effect. Every lawmaker who wants to sound tough on sex offenders has to propose a law tougher than the one enacted by the last politician who wanted to sound tough on sex offenders.

So laws get harsher and harsher. But that does not necessarily mean they get better. If there are thousands of offenders on a registry, it is harder to keep track of the most dangerous ones. Budgets are tight. Georgia’s sheriffs complain that they have been given no extra money or manpower to help them keep the huge and swelling sex-offenders’ registry up to date or to police its confusing mass of rules. Terry Norris of the Georgia Sheriffs’ Association cites a man who was convicted of statutory rape two decades ago for having consensual sex with his high-school sweetheart, to whom he is now married. “It doesn’t make it right, but it doesn’t make him a threat to anybody,” says Mr Norris. “We spend the same amount of time on that guy as on someone who’s done something heinous.”

The case of Phillip Gariddo, accused of kidnapping then 11-year-old Jaycee Lee Dugard and holding her hostage for 18 years, sexually abusing her and fathering two children with her, has revealed the paradox at the center of America’s unusually tough sex offense laws. The harsher the laws get, the more people who are caught in the ever-expanding net of offenses, the easier it is for the real child abusers to go undetected.

"Iowa court dismisses challenge to sex offender law" is the headline to a Sept. 4th AP story by Melanie S. Welte. Some quotes:

Robert Formaro argued, among other issues, that the law violated his right to travel and freedom of association. He claimed, for example, that it prohibited him from traveling to any location where he may fall asleep within the 2,000-foot zone. And, he said, it barred him from participating in overnight family gatherings and overnight stays at a hospital within the 2,000-foot zone.

Ruling in the case from Polk County, the court said the law dictates where Formaro may live, but doesn't impede his freedom of travel or right to association.

"Formaro is free both day and night to attend political meetings, religious services, or other gatherings, both in and outside the protected zone," the court said.

Formaro also claimed the law was vague, arguing the term "reside" doesn't convey what conduct is prohibited.

In its ruling, the court said it's clear the Legislature wanted to prevent sex offenders from living within 2,000 feet of a school or day care and "not casual sleep within a prohibited zone."

"While the 2,000-foot rule impinges on where Formaro may establish a residence, there is no fundamental right to live where you want and certainly not one based upon the First Amendment," the court said.

Court records show that Formaro was 15 when he was charged in 1998 of second-degree sexual abuse in juvenile court. He was convicted but not placed on the sex offender registry because the court found he was a low risk to reoffend.

Two years later, he was accused of participating in a burglary. Formaro pleaded guilty and was sentenced to 10 year in prison and was placed on the state's sexual offender registry.

He was released from prison in 2004 and lived with his parents in Ankeny with the approval of his parole officer.

In 2005, his new parole officer discovered his parents' home was within 2,000 feet of an elementary school and told him he needed to move within five days.

He filed a petition claiming the law was unconstitutional, which a district court denied. He appealed to the Iowa Supreme Court. * * *

The Legislature revamped the law this year. It retains the 2,000-foot ban for schools and day care centers for those who have committed sex abuse against a child.

It also puts in place a ban on offenders entering those places without permission, and it establishes a 300-foot "no loiter" zones around those sites.

"I think some of the real issues we tried to address in Formaro are still out there and I think only through court review of the new statute are we going to be able to truly understand what impact it's going to have on people affected by these rules," he said.

Ind. Law - Time for another golf carts update

Berne has formally joined the golf cart parade. By a 5-0 vote on Monday night, the Berne City Council approved, with two changes, a golf cart regulation ordinance that will be in effect as soon as it is published in the Berne Tri-Weekly News.
The new law will allow golf cart use on city streets and alleys if a cart is "registered, operated, insured, and equipped" as required by the ordinance. Among Berne's golf cart requirements are the following:

No golf cart may be operated on a highway except for the purpose of crossing a highway perpendicularly at an intersection with a city street.

Golf carts must obey posted speed limits and may not be operated in excess of 30 mph.

Golf carts shall be operated as closely to the right edge of the street or alley as possible and may not impede the flow of normal traffic.

No golf cart may be operated or parked on city sidewalks.

No golf cart shall be operated on a street between [midnight] and 5 a.m.

Only a person with a valid driver's license shall be authorized to operate a golf cart on a street and the driver of a cart must have that license with him or her while driving.

All golf carts must be insured for a period of not less than 12 months.

Golf carts must have "factory seating for all occupants, a rearview mirror, headlights, tail lights, brake lights, front and back turn signals, and a slow-moving vehicle sign attached to the rear." The lights must be visible for at least 500 feet.

No golf cart may be operated on a street until [it] is registered with the city. Registration must be done by the city police and will cost $25. One of the two changes reduced that fee from the originally-proposed $30.

Police Chief Tim Taylor said at the meeting that golf cart owners should contact the police, who will come to the owners' homes to register their carts. Each registration expires on December 31 of that year. * * *
The penalty for violating the new law is a fine of $50 to $100, plus court costs. If a golf cart owner has two violations in a calendar year, the registration of that cart will be revoked if that same golf cart was involved in the first violation
If a golf cart is impounded by the police, it will not be released until "the basis of the violation has been corrected" and until the towing and impoundment fees have been paid by the owner or operator of the cart.

Franklin and Bargersville are drafting new rules for people with golf carts, such as requiring the carts to be registered, insured and equipped with headlights, turn signals and seat belts.
A new state law effective last month bans golf carts on both public and private streets, but cities and towns can draft their own laws if they want to allow carts.
Golf carts are used regularly by the Franklin parks department, Franklin College and the Franklin United Methodist Community, and should be allowed as long as certain rules are followed, Mayor Fred Paris said.
The carts also have become more popular since fuel prices spiked, and for some residents are a less costly way to get around, Bargersville Police Chief Lin Hunt said.
Safety and visibility will be the focus of both communities' local laws, which haven't been approved yet.
Golf carts are banned on public streets in Greenwood, and the city doesn't have any plans to draw up local rules to allow them, Police Chief Joe Pitcher said. * * *

As part of the new rules, golf carts wouldn't be allowed to travel down streets where the speed limit is higher than 30 mph, McCarty said.
Carts also wouldn't be allowed to travel along certain busy streets, such as U.S. 31 and Jefferson Street, but would be able to cross the streets on their way somewhere else.

Adams County - "Adams County has golf cart proposal "reported Eric Mann in the September 1st Decatur Daily Democrat:

The Adams County Commissioners have officially spoken on the golf cart issue.
A vote of 3-0 on Monday passed a golf cart use ordinance on first reading, after which the measure was tabled until next Tuesday's meeting.

The ordinance notes that the state legislature this year "passed legislation authorizing the regulation of golf carts by a local authority" and that the commissioners "recognize that residents of the county desire to operate their golf carts on and across the roads and streets under the jurisdiction of the county."

Initial interpretations of the law said that counties did not have the option that cities and towns had, to make legal the use of golf carts. Other counties have approved the use of golf carts on county roads, apparently citing the "regulation of golf carts by a local authority."

The issue of golf carts — legalized on July 21 in Decatur — simply won't go away.
The matter was back before city council once again Tuesday night for some "tweaking" of the ordinance. Not only was the tweaking not a accomplished, but some new questions were raised.
One tweak involved Bunge North America's use of 20 to 25 golf carts to move employees around on its complex. City officials are willing to exempt the carts from the city ordinance when the carts are being used on the portion of Second St. at the Bunge complex.
In addition, some residents of Deer Run and Grey Goose subdivisions seek the same exemption which allows city residents using their carts to travel to and from the Cross Creek course, only the former would involve the Grey Goose Golf Club.
Again, council members are prepared to give the okay.
City Attorney Tim Baker prepared an amendment to the golf cart ordinance to cover the issues above. Before long, however, it was questioned whether city officials want Bunge carts exempt from the provision which bars golf carts on city streets from midnight to 5 a.m., and whether the same carts should be exempt from the same law which requires lights on golf carts.
Baker also brought up the fact that the federal Occupational Safety & Health Administration (OSHA) requires golf carts with seat belts to also have a roll bar. Decatur's ordinance does not require seat belts except for children who fall under the state law requiring safety restraints.
So would that come under the OSHA seat belt provision requiring the roll bar?
Eventually, at the suggestion of Mayor John Schultz, the amendment of the ordinance was taken under advisement — meaning golf carts will be return once again at a future meeting.

CROTHERSVILLE — Change may be coming to the streets of Crothersville if town council members approve golf carts as a means of transportation on the town roads.
Council members Ardell Mitchell, Karen Mains and Bill Nagle reached a consensus at their monthly meeting Tuesday night for an ordinance allowing golf carts to be driven on streets in Crothersville to be drafted for consideration next month. The ordinance will include golf carts only, not ATVs.
Council members made it clear they want the ordinance to include the state minimum requirements for drivers as well as adding reflectors to golf carts driven on town streets. Council also briefly discussed including operating hours for the vehicles to be on the roads. The ordinance will also include a provision that those wanting to drive their golf carts would need a Crothersville city sticker and pay a registration fee to ride in town.

Ind. Gov't. - More on "Lights Out at the Penitentiary: Strapped States are Shutting Prisons"

Reporting from Denver - After decades of pursuing lock-'em-up policies, states are scrambling to reduce their prison populations in the face of tight budgets, making fundamental changes to their criminal justice systems as they try to save money.

Some states are revising mandatory-sentencing laws that locked up nonviolent offenders; others are recalculating the way prison time is counted. * * *

Many states have expanded credit for good behavior. Others have made legal tweaks, such as raising the minimum amount of damage required for a property crime to be a felony. Some, like New York, have overhauled long-criticized mandatory sentencing laws that sent nonviolent, first-time drug offenders to state prison.

Read the Sept. 5th entry in conjunction with this lengthy story by Kevin O'Neal in today's Indianapolis Star, headed "Killer's early release in pastor's 1993 slaying sparks outrage." Some quotes:

Sixteen years ago this month, Dean Kernodle watched in horror as Elizabeth Mayberry gunned down the pastor at his Hendricks County church.

Today, Kernodle is outraged that Mayberry will be released in a few weeks after serving 16 years of the 60-year sentence a judge gave her for the murder of the Rev. Roland "Ron" Phillips Jr. * * *

Now, the case is putting renewed focus on sentencing policies that allow some people to be released early from prison for good behavior and for getting an education while behind bars. * * *

Psychiatrists who testified at Mayberry's weeklong trial disagreed about whether she was insane when she killed Phillips. A Hendricks County jury found Mayberry guilty but mentally ill, and the presiding judge, Mary Lee Comer, gave her the maximum 60-year sentence.

Later, the Indiana Supreme Court reduced the sentence to 40 years. The court ruled on an appeal in 1996 that Mayberry was mentally ill at the time she shot Phillips, which should have been considered a mitigating factor in her sentence.

Like all Indiana prison inmates, Mayberry also benefited from standard Department of Correction procedures that allow a day off a sentence for every day of good behavior. Inmates with a clean record behind bars typically serve only half the sentence a judge gives them.

Inmates can earn further reductions in their sentences by obtaining college degrees while they're in prison. Mayberry completed studies in vocation printing and drafting, and received an associate's degree in business administration and a bachelor's degree in general education.

Those educational accomplishments earned her the maximum four years of credit time that the DOC allows.

The idea of education credit for Indiana inmates goes back to the 1980s. Leslie Duvall, a former member of the Indiana Senate, advanced the idea during the years he served on the Senate Judiciary Committee.

"Lightening a sentence to improve themselves behind bars, I still favor that," said Duvall, now 85. "My fingerprints are all over that legislation. It's an option the DOC has for self-improvement."

In the 2008-09 school year, the Department of Correction had 3,301 inmates taking college classes; 940 received degrees and credit time on their sentences.

Getting a college degree in prison improves the chances for prisoners to succeed once their sentence has expired, according to an inmate advocate.

"The best guarantee of reducing recidivism is education," said Larry Landis, executive director of the Indiana Public Defender Council. "Education is in effect a way to empower yourself. You see that you have a choice and an option other than the depressing cycle of crime."
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Prosecutors across Indiana have complained that some inmates have taken college courses more to have time subtracted from their sentences than to prepare themselves for life beyond prison, said Stephen Johnson, executive director of the Indiana Prosecuting Attorneys Council.

Although there's no hint of a problem with Mayberry's accomplishments, prosecutors have worried about inmates misusing the education credits to get more time off their sentences than they deserve.

The whole system of good time and credit time, along with the possibility of sentence reduction through appeals, makes it hard for prosecutors to tell victims' families how long a defendant will stay in prison, Johnson said.

Law - "Judges’ Frustration Grows With Mortgage Servicers"

That is the headline to this lengthy NY Timesstory by John Collins Rudolf, dated Sept. 3rd. Some quotes:

With consumers complaining about the difficulty of getting any response from their mortgage servicers, the effectiveness of the Obama administration’s plan to provide homeowner relief is being threatened. As they wait for an answer on whether they might qualify, homeowners are succumbing to foreclosure and bankruptcy proceedings and winding up in courts — at times in front of judges who are also frustrated. * * *

Under preliminary questioning by one of the bank’s lawyers, Mr. Ohayon stated that Mrs. Giguere had repeatedly failed to provide a financial worksheet, a critical document in processing a loan modification.

Under cross-examination by Mrs. Giguere (who had a little assistance from Judge Haines), the bank’s defense withered. From her files, Mrs. Giguere produced a letter from Wells Fargo describing the paperwork that she needed to file for a loan modification. In the witness chair, Mr. Ohayon read the letter.

“Mrs. Giguere is right,” Mr. Ohayon concluded. “The letter did not ask for a financial worksheet.”

Experts said the hearing in Phoenix reflected rising frustration by federal bankruptcy judges with mortgage servicers, which process payments for banks and the investors who own large pools of loans. In recent months, judges in Ohio and Pennsylvania have chastened mortgage servicers for failing to process payments properly and for errors in foreclosure filings, among other concerns.

“The judges are seeing more and more of a pattern of indifference to record-keeping and good business practices,” said Robert Lawless, a law professor at the University of Illinois who specializes in bankruptcy law.

One of the biggest complaints by homeowners has been poor communication by mortgage servicers on the status of their applications for loan modifications. In the case of Mrs. Giguere, Wells Fargo decided back in March shortly after she faxed the bank her application that she did not qualify for the Home Affordable Modification Program.

She did not learn of the bank’s decision until Thursday.

“When did you tell the debtors that their loan was no longer being considered for modification?” Judge Haines asked Mr. Ohayon.

We disagree. The applicable regulation requires that the inspection reports be signed by the inspector. Beaty admits that this was not always done in its inspection reports. Although Beaty claims that this irregularity was at most a de minimis violation, this is precisely why the safety report cited Beaty for a non-serious violation and issued no fine."

Courts - Houston lawyer asks "several local media outlets to provide the names of readers and listeners who commented about his client online"

A lawyer for Lucas Coe, charged in the death of 4-year-old Emma Thompson, has asked several local media outlets to provide the names of readers and listeners who commented about his client online.

Bert Steinmann, The Woodlands-based attorney for Coe, said he was struck by the conclusions people drew about his client and the specificity of some comments that made it appear they came from people with personal knowledge of the case. * * *

Steinmann said he's sent subpoenas to media including The Houston Chronicle, the Conroe Courier, KHOU (Channel 11) and KTRK (Channel 13).

Those who comment generally use pseudonyms, and the lawyer has asked for identifying information on about 300 of them.

The lawyer said most of the media outlets have already moved to quash the subpoenas.

“In our Terms of Service and Privacy Policy, we alert chron.com users that their names may be disclosed in response to litigation,” said Jeff Cohen, editor of the Chronicle. “However, in this case we are notifying the users in question so they can make objections if they so choose.”

Law - "Safeguarding History: Why the records of Supreme Court justices should be governed by rules -- not individuals"

THE CASE of former Supreme Court justice David H. Souter shows why the country needs a sensible and formal policy on how justices preserve and disseminate material they produce while performing their public duties.

Justice Souter agreed last month to donate his personal and professional papers to the New Hampshire Historical Society in his home state. But he ordered that they be off-limits to the public, including academic researchers, historians and journalists, for 50 years from the date of his retirement -- or until 2059. This restriction is excessive and puts Justice Souter's records out of reach for two generations, making it that much harder to fully and accurately assess his work and impact on the court.

Yet it could have been worse. Only documents that are part of an official case record -- such as briefs, final opinions and orders -- must be preserved for at least some time. No such strictures exist for a justice's work product, which could include notes from private conferences, drafts of opinions or correspondence with colleagues or clerks about cases. Justice Souter could just as easily have ordered these documents burned, shredded or otherwise destroyed in full, as Justice Charles Evans Whittaker did after stepping down from the court in 1962.

Most justices would probably never consider such drastic and historically devastating actions. But the absence of guidelines leaves individual justices with far too much power to determine the fate of records that the public rightly has a claim to. After all, justices are public servants and are paid with public dollars.

It's reasonable to allow a grace period between a justice's retirement and the public release of papers. Such a lag should help ensure against disclosures about pending matters and lawyers' use of very recent information that could tip them off to the thinking of justices still on the court. The Brownell Commission, which studied the issue in the 1970s, recommended that justices' working papers be deemed public property and made available to the public 15 years after a justice's retirement. Congress took up the matter in 1993, after the controversial release of the papers of the late Justice Thurgood Marshall. Then-Chief Justice William H. Rehnquist, in response to an invitation to address lawmakers, wrote that legislation was "not necessary and that it could raise difficult concerns respecting the appropriate separation that must be maintained between the legislative branch and this Court." Nothing ever came out of the hearings.

The best way to avoid concerns is for the Judicial Conference of the United States, the policymaking body for the federal judiciary chaired by Chief Justice John G. Roberts Jr., to take the lead in establishing guidelines for justices and all federal judges. But if the judiciary cannot or will not act, Congress should.

Updating the ILB entries on DOJ nominee Dawn Johnsen, Andy Graham of the Bloomington Herald-Times (who also wrote this earlier story) reports today ($$) on the impact of the stalled confirmation process on the Monroe County Community School Corp. board (MCCSC), upon which Johnsen's husband, John Hamilton, began serving this year. Some quotes from the story:

More than a few people would dearly love to see the U.S. Senate expedite Indiana University law professor Dawn Johnsen’s confirmation process as head of the Office of Legal Counsel — including members of the Monroe County Community School Corp. board.

John Hamilton, Johnsen’s husband, began his four-year term on the MCCSC board in January, the same month his wife was nominated by President Barack Obama.

But he, like the rest of his family, has had to make family and professional plans amidst uncertainty about when or if she would be confirmed for her new Washington, D.C.-based post. Johnsen gained committee approval in March, but still has not received a vote before the full Senate.

Hamilton made 9 out of the 10 regularly-scheduled, twice-monthly MCCSC board meetings until June. He has missed four of seven since then, but has managed to make at least one each month and wrote via e-mail Friday that he intends to attend the Sept. 15 meeting that will include a public hearing on the 2010 MCCSC budget.

The family hasn’t sold its Bloomington home, but the couple’s two sons are now attending school out East.

“Certainly, family matters have made our lives a little more complicated for longer than we had hoped,” Hamilton said via cell phone Thursday afternoon.

“I certainly love being on the school board and am doing my best to continue to serve while we wait and expect a relatively prompt resolution of some issues with which we’ve had to deal.”

The Senate reconvenes Tuesday, and some Washington watchers feel Johnsen’s situation could clarify before the month is out.

MCCSC board president Jeannine Butler said that Hamilton had indicated, all along, that he would resolve his own status on the board after his wife’s confirmation process was completed, but few anticipated it would last this long.

“When she first was nominated, John told me he planned to stay on the board till she was confirmed, planned to be an active member and enjoyed the work,” Butler said. “In June, he reiterated that and hoped for some sort of resolution in August.

“I understand the situation, and I’m sympathetic with him. But we also need a full board. We need a full complement of seven active, participating members.” * * *

“I’m empathetic with John, obviously, but he’s had to miss four meetings since June,” said Butler, who doesn’t favor a continuation of that pattern. “That’s an issue that’s not at all about John, but about having a full board.”

Hamilton plans to continue serving on the board, for the time being, but said, “I have a new appreciation for how the federal government can, at times, interfere with the operation of local government in unexpected ways.”

The Herald-Times also has this editorial ($$) today, asking whether Hamilton should step down:

When John Hamilton ran a successful race to join the board of the Monroe County Community School Corp., he couldn’t have known his wife, Dawn Johnsen, would get caught up in a drawn-out nomination process for a significant role in the Obama administration. But that has happened.

Hamilton now finds himself in an untenable position regarding his attempt to serve the community through membership on the school board. He’s missed four of the last seven school board meetings as the focus of his and his family’s life — his sons are not enrolled in the MCCSC anymore — shifts more to Washington, D.C. He does plan to attend the Sept. 15 meeting, even though he previously had said that was up in the air.

No one is questioning his desire or ability to serve. But it is a legitimate question to ask whether he should continue to fill a seat on the MCCSC board when his energies must be split because of circumstances he can’t control.

He needs to be a full partner with the rest of his board colleagues if he is to continue.

Law - Angie's List calls for better regulation; plus see the ILB's dog

(INDIANAPOLIS) -- Angie’s List Founder Angie Hicks today called on state lawmakers around the country to enact uniform and understandable trade licensing laws that give consumers an assurance that anyone holding a license is qualified to do the job it covers.

She also asked lawmakers to set aside a portion of licensing fees for consumer protection funds, as a few states already do, so homeowners who are bilked by licensed contractors can recover their lost investments. Hicks will be sending letters to governors across the country outlining the need for better trade licensing laws.

“Most trade licensing is too complicated and offers too little enforcement or protection,” Hicks said. “Homeowners should be able to trust that if a governmental body has given a license to a contractor, that the contractor is reliable and qualified. They should also have access to some recompense if they rely on a licensed contractor who doesn’t deliver, or worse yet, cheats them.”

Hicks’ call for better laws around the country coincides with a strengthening of Angie’s List policies about trade licensing. * * *

“Licensing laws vary greatly across the country and even among cities within the same state, which makes it hard for contractors to keep track of what’s required and what isn’t. Consumers don’t have a chance of figuring it out without help,” Hicks said. “Consumers are still responsible for determining the license status of the contractors they hire, and Angie’s List will be working to make it easier for them. But the key to really accomplishing a better system will fall to lawmakers.”

While lawmakers may debate how – or if – to address the issue, Angie’s List is now requiring companies on the List to attest that they are in compliance with state and local laws. Like the IRS, Angie’s List will audit contractors to verify they are following the law. Those found to be out of compliance will have an opportunity to comply or face actions from Angie’s List that will include alerting members to their true status.

Hicks said it’s probably unrealistic to expect all states to adopt the same uniform licensing law that requires minimum training and qualifications, proper enforcement and consumer protection. A state-by-state approach is likely more realistic. “Even if each state has different trade licensing laws, having one direction per state to follow would be better than the mish-mash we have now,” she said.

The release goes on to discuss "the complexity of the issue" at length.

For much more, see this story in Angie's List Magazine, plus the links to the right of the story, including "Terms You Should Know."

In addition, John Ketzenberger, currently of the Indianapolis Star, has a column today headed "Angie's List keeps raising bar on quality."

The ILB's Dog: While visiting the Angie's List Magazine, take the time to admire my handsome Golden Retriever, Higgins Oddi. He is here, the happy blond dog on the right in the first photo.

Ind. Courts - "NY businesswoman was high-class grifter"

INDIANAPOLIS (AP) — Dina Wein Reis seemed to have it all — millions in the bank, an extensive art collection worth millions more and a luxurious Manhattan brownstone, where she hosted high society parties.

But authorities say the socialite's success was the result of an elaborate scam in which she tricked Fortune 500 corporations into selling her millions of dollars worth of goods at a fraction of the regular price for use in nonexistent promotions. She then resold the products at a hefty profit.

A federal grand jury in Indianapolis indicted Reis, 45, on seven counts of fraud and conspiracy in October, saying she swindled companies in Indiana, Missouri, New Jersey and Kentucky. Federal prosecutors believe there are victims in other states.

Indianapolis attorney J. Richard Kiefer, who represents Reis, said she denies the government's allegations. He said Reis could not comment due to federal court restrictions. There was no number for Reis in published listings for New York.

Reis has been released on her own recognizance while attorneys battle over whether to move her trial from Indiana to New York. A federal judge heard arguments in the jurisdiction dispute Friday and is expected to rule soon. * * *

One of those targeted was Donald Dumoulin, then an executive at Indianapolis-based Roche Diagnostics Corp.

After meeting with Reis, Dumoulin persuaded Roche to sell her $11.6 million worth of diabetic test strips for $1.7 million, according to a 2007 lawsuit Roche filed against Reis. Roche later discovered Reis' operation had tried to sell the strips to Walgreens for about $4.6 million, which Halliden said led to the criminal probe.

The lawsuit was settled for an undisclosed amount. Roche declined to comment, and Dumoulin didn't return phone messages from The Associated Press seeking comment.

Prosecutors say Reis made the network seem real by passing along personal endorsements by third parties she secretly paid, concocting marketing reports, even taking potential victims on tours of warehouses or retail stores that supposedly were part of the promotional program.

Court records show Reis' operation — under a variety of names — targeted dozens of other companies over the years, including Bristol-Myers Squibb, Beech Nut, Nestle, Revlon and Kraft.

At least a half-dozen lawsuits have been filed against Reis, but the cases generally have been settled out of court. Many victims don't sue because they're embarrassed at having been had, said Donald deKieffer, a Washington, D.C., attorney who has helped prepare several lawsuits against Reis.

Ind. Law - Indiana malpractice cap may be challenged

A widower who won an $8.5 million medical malpractice verdict against Community Hospital North in his wife's death now might challenge a state law that reduces the award to $1.25 million.

The verdict was issued Thursday in the case of Debbie Plank, a Hancock County mother of three. She died in 2001 after the hospital failed to promptly get an X-ray to doctors that showed she had a dangerous bowel obstruction, her family's lawyers claimed.

The damage award will be capped at $1.25 million by a state law that limits malpractice verdicts against medical providers.

"We think that cap is unconstitutional," said John Muller, attorney for the Plank family.

The cap was last raised by the state legislature in 1998, when it went up from $750,000. * * *

Tim Plank said he didn't file the lawsuit for the money. One motivation was the lack of an apology by the hospital.

Muller said Plank also was angered when a hospital representative called after his wife's death, asking him to complete a customer satisfaction survey.

"It just made him so angry. They had the gall to ask him, 'Are you satisfied?' " It was like they didn't even know what they had done to his wife and him," Muller said.

Plank said a hospital attorney approached him after testimony in the trial ended and passed on an apology from the hospital.

The Shelbyville News had this story by Jeff Tucker. Some quotes from this much more comprehensive report:

A local law firm was a successful litigant in a two-week medical malpractice case that ended late Thursday with a Marion County jury imposing an $8.5 million judgment against an Indianapolis doctor and hospital.

How much will actually be awarded to the family of a McCordsville woman who died at Community North Hospital in 2001 from bowel obstruction complications was uncertain Friday, given the freshness of the verdict and the state’s cap on medical malpractice claims, said attorneys and the judge in the case.

Mike Stephenson of McNeely Stephenson Thopy & Harrold of Shelbyville was lead counsel for the plaintiffs in the case against Dr. Joseph Pavlik and Community Hospitals of Indiana, based in Indianapolis.

Debbie Plank of McCordsville died at Community North Hospital on Dec. 1, 2001, after her radiology imagery was lost and a surgery to relieve a bowel obstruction delayed, according to court testimony. She was 47.

Plank went to the emergency room at Community North on Nov. 13, 2001, the third time in a week, complaining of stomach pains. She was admitted to the hospital, and at 5 a.m. Nov. 13 had an X-ray taken that showed a small bowel obstruction, according to court testimony.

Stephenson said the two-week proceeding established that the hospital’s radiology department should have alerted hospital physicians of the potential need for an emergency surgery.

Plank was seen by hospital doctors, including Pavlik, a general surgeon with Castleton Surgical Group with 20 years of experience. Pavlik, unaware that Plank had a bowel obstruction, went to the radiology department to check on Plank’s X-rays, but could not find any film, according to testimony.

“Pavlik claimed it was a very rare event to have this type of bowel obstruction and, had he known of the X-ray, his course of treatment would have been completely different and Debbie Plank would be alive today,” Stephenson said.

Plank’s attending physicians did not know of her condition until later, and the surgery was delayed 24 hours, until Nov. 14, 2001, court testimony established.

“When they did the surgery, they found that part of her intestine had already died,” said plaintiffs’ co-counsel John Muller.

Plank had surgeries on Nov. 14 and 15, was placed on life support after the second surgery and died on Dec. 1, 2001.

The Marion County Circuit Court jury returned the whopping judgment at about 11 p.m. Thursday after deliberating for about six hours after the nine-day trial. * * *

“She was really an exceptional woman,” said Muller, an attorney with Montross Miller Muller Mendelson & Kennedy of Indianapolis. “I think the verdict reflected the fact that this was really a close-knit family that really suffered from the loss of her.”

Circuit Judge Louis F. Rosenberg confirmed Indiana’s maximum medical malpractice claim is $1.25 million and told The Shelbyville News Friday afternoon that no new motions had been filed in the case.

“There are no pending motions as far as I can tell,” he said. “I will issue a judgment based on the jury verdict.”

The co-defendants can appeal the ruling to the Indiana Court of Appeals, and the plaintiffs could question the constitutionality of the state’s cap.

Robert G. Zeigler of Ziegler Cohen & Koch of Indianapolis represented Community Hospitals of Indiana, while David J. Beach of Eichhorn & Eichhorn in Hammond represented Pavlik. * * *

Stephenson and Muller said Friday that it was too early to tell how the plaintiffs would proceed, but said any appeal of the state cap would begin with a motion and hearing in Marion County Circuit Court.

The Medical Malpractice Act of 1976 originally imposed a $500,000 cap on medical malpractice claims, they noted.

“There have been cases in the past where the verdict has exceeded the cap. There hasn’t been a constitutional challenge to the cap,” Muller said. “We’re in discussions, evaluating. We’re looking at it to see if there is a constitutional challenge to that cap. In other states, these caps have been found to be unconstitutional.

“It’s up to the client to decide if the cap will be challenged.”

The plaintiffs’ attorneys said the jury wasn’t told about the $1.25 million cap during the trial and based its judgment on the merits of the case.

“The jury isn’t told about the cap. The jury listened to the evidence and returned a verdict for the damages,” Muller said. “Typically, the judge would reduce the judgment to the cap.”

Stephenson said that by law the judge is compelled to reduce the jury’s judgment to $1.25 million.

Law - "Cyberlaw Cases: The Top Ten Pending Cyberlaw Cases"

This is a good idea *, a new blog designed to follow ten cases: 1. The Google Books Settlement; 2. The NSA Warrantless Wiretapping Cases; 3. The Future of Method Patentability; 4. A Billion Dollar Test of the DMCA Safe Harbors; 5. Is the FCC Authorized to Promote Net Neutrality? 6. The File Sharing Trials; 7. The Copy Ownership Cases; 8. The AdWords Cases; 9. Intermediate Copying to Extract Information; and 10. State Efforts to Regulate the Internet. The ILB has been following several of these cases, particularly #1 and #10.

Two University of California, Berkeley, professors are teaming up with two colleagues to launch "Cyberlaw Cases," a blog covering what they consider the top 10 most important pending U.S. legal cases involving issues that impact the Internet, databases and software programs.

_______
*Although I think the concept of following these ten cases is great, I do have some questions about using a blog format for this; perhaps a Wiki would work better. Time will tell. The other concern is how frequently will it be updated. Currently it appears not to have been updated since the August 31st rollout.

Kevin Lilly has this long feature in yesterday's Logansport Pharos-Tribune. Some quotes:

As a high-ranking officer in the U.S. Air Force, Judge Rick Maughmer dealt with national secrets and traveled the world serving his country.

Last month, the Cass County native brought his military career to a halt after nearly 37 years. Maughmer recently discussed his experiences in the intelligence and security trades, as well as his plans for the future. * * *

Through the years, Maughmer acquired the titles of communications squadron commander, security forces commander and deputy director of security forces, which is the No. 2 person for all security forces for the Air Force Reserve. He retired with the rank of colonel.

In 2000, Cass County residents elected Maughmer to serve as judge of the newly created Cass Superior Court II. Less than a year into his judgeship, terrorists attacked the World Trade Center Towers and the Pentagon.

After Sept. 11, 2001, Maughmer left the courtroom for Robins Air Force Base in Georgia, where he spent 13 months.

Maughmer admitted that he felt guilty about splitting his time between the military and his elected position. After returning from Robins, he worked out a deal with the Air Force and Garrett Palmer, the special judge who steps in for Maughmer when he is away one week out of each month.

Maughmer says he has always handled sentencing in felony cases.

“I’d still do that because I feel an obligation to the taxpayers. They hired me to the job,” Maughmer said.

The judge tried to retire in 2005, but the Air Force offered him a job in recruitment.

“It was an attractive offer that I could not refuse,” he said.

Maughmer never thought he’d be in for more than 36 years, but he said the military was good to him. His service paid for an education, helped raise a family and opened doors he could not have imagined.

“It just gave me an opportunity for my life,” Maughmer said.

Maughmer’s plans for the future include devoting time to his children, his wife of 36 years and the courtroom.

“I want to be the best judge I can be, spend more time with the family and get involved in the community to the extent that I can as a judge,” said Maughmer, who is considering a second job as local farm hand.

As for his future as judge, he will hold the position “until the people fire me,” he said.

Courts - C-SPAN focuses on the Supreme Court; also feature on campaign finance

C-SPAN is going all out - it has a new website, totally devoted to the SCOTUS. And it will have a week-long focus on the Court, from Oct. 4 - 12th -- "Hear directly from the Supreme Court Justices themselves, and see the building in exquisite detail." It also has a preview on its YouTube page.

Updating this entry from Sept. 4th, "Mourdock again aims at Chrysler: Wants bankruptcy sale re-examined" is the headline to a story today by Eric Bradner in the Evansville Courier & Press. Some quotes:

INDIANAPOLIS — State Treasurer Richard Mourdock is reviving his dormant effort to call the Chrysler bankruptcy proceedings into question.

The U.S. Supreme Court rejected a June bid by three Indiana funds to block a deal that Mourdock, a former Vanderburgh County commissioner, said would break from ordinary process and cost Indiana funds millions of dollars. * * *

The Supreme Court's decision to reject an emergency appeal to halt the bankruptcy proceedings at the last minute was rejected, but the high court did not consider the merits of the trio of Indiana funds' arguments at the time.

A petition filed Thursday asks the Supreme Court to clarify whether similar bankruptcy proceedings should be allowed in the future — a question Mourdock for months has said needs to be answered.

"We are not asking for the bankruptcy sale of Chrysler to be reversed, which is legally impossible, but the losses to our funds are very real," Mourdock said.

"From the beginning, I have consistently stated that the federal government must follow the law, and that is why the appeal was filed." * * *

If the Supreme Court decides to hear the case, Indiana could recover some lost money, said Jim Holden, chief deputy and general counsel for the Indiana Treasurer's Office.

If the Supreme Court sides with Indiana, it could send the matter back to a bankruptcy court to determine how much money could be recovered and how that would work.

The state argues that a provision in U.S. bankruptcy code known as Section 363 was used in the Chrysler case as an end-around to avoid typical Chapter 11 bankruptcy reorganization, which provides more protection for creditors.

Indiana is asking the Supreme Court to determine whether Section 363 may be used that way in the future.

"It's being used more and more as a kind of back door for this kind of thing — to wipe out creditors' claims and reorganize," Holden said. "Our position is that's too much of a stretch."

Ind. Decisions - "Judge will remain in Jay County murder cases"

The August 26th NFP decision in Thomas A. Smith, Michael J. Heffern, Tina L. Whiting, Addison R. Pijnapples, and Roderick Berry v. State of Indiana is the subject of a story today in the Muncie Star-Press:

PORTLAND — Judge Brian Hutchison will continue to preside over five local murder cases, the Indiana Court of Appeals has ruled.

Ind. Courts - "The defense and prosecuting attorneys were present, but the judge was not, due to personal reasons"

That line is far down in this story by David Stewart of the Bloomington Alternative about a caravan of people journeying "down to Petersburg for the initial court hearing for I-69 activists Hugh Farrell and Gina "Tiga" Wertz." More quotes:

The pair were scheduled to appear in Pike County Circuit Court, where each faced charges of one felony charge of corrupt business influence (racketeering), two counts of misdemeanor conversion and two counts of misdemeanor intimidation for protests against new-terrain I-69.

"We're going down to show support for Hugh and Tiga, and also to show the Pike County Court that people are paying attention," Myke Luurtsma said. * * *

Smith agreed, "We here today are all activists who are serious about wanting to stop the construction of I-69. We are speaking out, just as Hugh and Tiga spoke out, in opposition to I-69, and we don't plan to just sit back and let it happen. Others are speaking out and acting as well. The state is taking a forceful and draconian approach. The state feels they have to crush this because the opposition is big, and there is resistance. The state is trying to alienate the activist community from those who are also against I-69, but who are not taking an activist approach. Their strategy is to create a wedge."

Smith explained that, "After the court hearing, we are going to visit landowners along the Pike County planned corridor of I-69, knocking on doors, giving information about their rights of eminent domain, handing out a DVD of comments that we have compiled from people who are against I-69, giving people the Web site." * * *

People arrived on foot, in cars and on bicycles. Even at that early hour of the morning all were cheerful and energetic. There was a lot of laughing as people clustered in small groups and came together in a big circle to plan the car-pooling. At 6:45 a.m., 27 people entered five cars and caravanned.

The next day, Lydia McDonald explained what happened in Pike County Court.

"Well, it all ended up being uneventful," she said. "The defense and prosecuting attorneys were present, but the judge was not, due to personal reasons. So, there was no proceeding after all! The lawyers met privately while all the supporters waited in the Courthouse. Afterwards, at approximately 10 a.m., one of Hugh's lawyers, Rick Kammen, spoke with the crowd outside the Courthouse. He stated that the proceeding did not occur due to 'crossed signals' and was both 'our mistake and theirs.'"

Kammen stressed that he did not feel it was done purposefully or in response to the large number of supporters who showed up. Motions for dismissal were supposed to be heard but instead will be taken under advisement and arguments will be heard at the next court date, which was set for Oct. 20 at 10 a.m. The lawyers also set a tentative trial date beginning April 19, 2010.

Kammen also noted that "if the road is a dead issue, the case is a dead issue," implying that these outlandish legal tactics are being used to intimidate others from opposing new terrain I-69.

Howard County Deputy Public Defender Stephanie C. Doran was formally charged Thursday with a misdemeanor in connection with a May 12 hit-and-run case.

Special Prosecutor Barry Brown alleged Doran, 41, was behind the wheel of a black SUV when she plowed into the back of farm equipment on Dixon Road.

Local restaurant owner Tom Trine suffered a slight injury in the accident, which damaged a corn planter he was towing.

According to a probable cause affidavit filed by Brown in Howard Superior 3, Doran talked briefly with Trine’s son, Jesse Trine, at the accident scene.

Instead of waiting for police to arrive, however, the Trines said Doran left the scene. * * *

Doran was located because Trine’s brother, who happened on the scene by coincidence, followed the black SUV to a residence near 250 West and 450 North.

That turned out to be Doran’s residence, but it took Howard County sheriff deputies obtaining a search warrant before the black SUV could be inspected and subsequently impounded. * * *

Even though Trine was slightly injured, the special prosecutor didn’t find cause to charge Doran with the more serious offense of leaving the scene of a personal-injury accident.

She was charged with leaving the scene of a property-damage accident, a misdemeanor.

Howard Superior Court 3 Judge Doug Tate issued a summons for Doran to appear in court, although a date hadn’t been set Friday. She will not be arrested.

And although Tom Trine was the victim in the crash, Friday he seemed almost apologetic that the charge had been filed.

“It is what it is. It just so happens that she’s an attorney, and of course, everybody wants to weigh in on the situation,” he said. “The sheriff is the sheriff, and the prosecutor is the prosecutor, and whatever they’re going to do, they’re going to do.”

Ind. Courts - LaPorte County judge threatens attorney with jail

La Porte Superior Court 1 Judge Kathleen Lang threatened Thursday to have a murder suspect's attorney arrested if she fails to come to court one more time.

For the second week in a row, Shawn D. Kelley's defense attorney, Logan-Tinae Thomas, did not show up for Kelley's status hearing.

"Where is Ms. Thomas?" Lang sternly asked.

"I spoke with my parents, and they said they talked to her about last week. She told them she didn't know she was supposed to be here," Kelley replied. "I don't know where she is today." * * *

Kelley switched attorneys at the end of January because, he told the court, James O. Cupp, his original attorney, had not been returning his phone calls and e-mails as quickly as he would like. That switch has caused enough delays in the case, Lang said - she doesn't want any more of them.

"If she doesn't appear next week, a bench warrant will be issued for her arrest," Lang said. "You are charged with murder, Mr. Kelley, you need to have a jury trial, and we've got to get this going."

Deputy Prosecutor Michael Bergerson said Thomas has not contacted him about Kelley's case since she entered her initial notice of appearance in February. Kelley's trial was set for Nov. 2 but will likely be delayed until late December, Lang said.

Thomas was formerly a deputy prosecuting attorney in Lake County. She opened her own firm, Thomas Law Office, in Michigan City in July 2006, according to her Web site. Thomas did not return phone calls to her office Thursday.

Saturday, September 05, 2009

Courts - More on: SCOTUS will hear case next month, preceding the "First Monday in October"

Updating this ILB entry from August 30th, here are two very good stories on the important oral argument coming up this Wednesday, September 9th.

The first, composed of both background and analysis, is from Lyle Denniston of SCOTUSBlog. This link also includes access to all the briefs. Note also that the 80-minute argument will be made available by the Court immediately upon its completion.

"Will Deep Pockets Always Win? It's In Roberts's Court," is the headline to this opinion piece today by Robert G. Kaiser of the Washington Post. It begins:

Occasionally, the Supreme Court reaches a decision that transforms American life. Fifty-five years ago Brown v. Board of Education announced the impending demise of racial segregation, and today we have a black president. In 1962, Baker v. Carr initiated a series of decisions that established the principle of "one man, one vote," eventually ending rural domination of Congress and state legislatures, a revolution in American governance.

This year or next the court could again remake the American system by permitting a flood of corporate money into our electoral campaigns, which are already drenched in dollars. Like Brown, such a decision would create vast new opportunities for a particular class of Americans -- this time, corporate elites.

This possibility comes as a surprise. Until this summer, the barriers preventing the use of corporate and union funds in political campaigns -- the oldest dating to 1907 -- were "firmly embedded in our law," in the words of a 2003 Supreme Court decision upholding the ban. Then on the last day of the court's term in June, for reasons not explained, the court invited the parties in a case called Citizens United v. Federal Elections Commission to revisit the constitutional issues involved. This they will do in an unusual second argument on the case, scheduled for Wednesday.

Ind. Gov't. - "Lights Out at the Penitentiary: Strapped States are Shutting Prisons"

Today's Wall Street Journal has this lengthy front-page story by Gary Fields on how many states are now "closing penitentiaries and releasing inmates early." A few quotes:

For three decades, state and local governments built and filled jails to make good on promises to get tough on crime. Now, the recession and collapsing budgets are forcing an about face.

Prisons are one of the biggest single line items in many state budgets, in part because nearly five times as many people are now behind bars as in the 1970s. From California to New York, officials are now closing penitentiaries and releasing inmates early. At least 26 states have cut corrections spending in fiscal year 2010, and at least 17 are closing prisons or reducing their inmate populations, according to the Vera Institute on Justice, a criminal-justice reform organization in New York.

The problem is especially acute in Michigan. Inmates here on average serve 127% of their court-ordered minimum sentences, well beyond the sentences of inmates in other states that offer parole, according to the Council of State Governments Justice Center. The state last year spent $2 billion on prisons, and one third of all state employees work for the department of corrections, which is among the highest percentage in the nation. With the collapse of the auto industry, the pressure to pare these costs is high.

Earlier this year, Michigan Gov. Jennifer Granholm expanded the parole and clemency board from 10 members to 15 and announced the state's prison population of 48,000 would be cut by 4,000 inmates. Seven correctional facilities have closed so far this year, including Hiawatha; the state has announced it will shutter another four. At least one of those four might remain open as Michigan considers accepting detainees from Guantanamo Bay, Cuba, and prisoners from other states. Officials from the federal government recently toured a maximum-security state prison in Standish, Mich., as a possible new home for prisoners held at Guantanamo.

But Hiawatha didn't get such a reprieve. That is why on the morning of July 28, Warden Woods was in his office at 7 a.m. poring over closure plans. Hiawatha, a so-called secure level-one prison, held everyone from burglars to second-degree murderers. Outside Mr. Woods's office, 40 inmates, each wearing arm and leg restraints, boarded a bus with dark-tinted windows headed 200 miles away to another prison where they would serve out the rest of their sentences. More buses and vans would be rolling later in the day, some carrying inmates as far away as Marquette Branch Prison, more than four hours west of here.

[More] Nicholas Riccardi reports today in the LA Times under the headline "Cash-strapped states revise laws to get inmates out: Mandatory sentencing laws are relaxed, parole is accelerated, and time off for good behavior is increased as states scramble to save money." It begins:

Reporting from Denver - After decades of pursuing lock-'em-up policies, states are scrambling to reduce their prison populations in the face of tight budgets, making fundamental changes to their criminal justice systems as they try to save money.

Some states are revising mandatory-sentencing laws that locked up nonviolent offenders; others are recalculating the way prison time is counted.

California, with the nation's second-largest prison system, is considering perhaps the most dramatic proposal -- releasing 40,000 inmates to save money and comply with a court ruling that found the state's prisons overcrowded.

Colorado will accelerate parole for nearly one-sixth of its prison population. Kentucky has already granted early release to more than 3,000 inmates. Oregon has temporarily nullified a voter initiative calling for stiffer sentences for some crimes, and has increased by 10% the time inmates get off their sentences for good behavior.

The flurry of activity has led to an unusual phenomenon -- bureaucrats and politicians expressing relief at the tight times. "The budget has actually helped us," said Russ Marlan, a spokesman for the Corrections Department in Michigan, which increased its parole board by 50% this year to speed up releases.

"When you're not having budget troubles, that's when we implemented many of these lengthy drug sentences and zero-tolerance policies [that] really didn't work," he said.

Though prison budgets grew steadily over the last 20 years, a recent survey found that 26 states cut their corrections budgets this year. The reductions range from the small-scale -- such as putting in energy-efficient lightbulbs -- to sweeping changes like the early releases.

"States are saying, 'We can't build our way to public safety, especially when budgets are tight,' " said Adam Gelb, head of the Pew Center on the States' Public Safety Performance Project. "For the most part, state leaders are not holding their noses and making these changes just to balance their budgets. They're beginning to realize that research-based strategies can lead to less crime at far less cost than prison."

Many states have expanded credit for good behavior. Others have made legal tweaks, such as raising the minimum amount of damage required for a property crime to be a felony. Some, like New York, have overhauled long-criticized mandatory sentencing laws that sent nonviolent, first-time drug offenders to state prison.

That is the headline to Robert King's story today in the Indianapolis Star about the 7th Circuit's ruling Thursday in the case of Annex Books Inc, et al v. City of Indianapolis (see ILB 9/3/09 summary here). Quotes from today's story:

Adult businesses selling books, movies and sex paraphernalia in Indianapolis will be able to open on Sundays -- and 24 hours a day -- unless the city can prove there is some compelling reason why it is singling out that particular day and particular hours.

A federal appeals court ruling issued Thursday casts serious doubts on the future of key parts of a 2003 city ordinance that more strictly regulates "adult entertainment businesses" in Indianapolis.

Unless the city can prevail on appeal or in a new evidentiary hearing, adult businesses not only could operate anytime, they also could provide booths or stalls with doors, where patrons can privately view movies on the premises.

"It is a pretty significant defeat for the city," said Richard Kammen, an attorney representing the four adult businesses that sued the city.

The three-judge panel said the city needs evidence that the restrictions in the ordinance have public benefits "great enough to justify any curtailment of free speech."

The city contends that such businesses attract crime. But the best it could do was report that, in 2002, police made 41 arrests for public masturbation at Annex Books, an Eastside shop that is one of the businesses that filed suit.

The court said it wasn't clear, however, whether the arrests occurred on Sundays or after midnight or whether that number of arrests was considered a lot compared with arrests at bars and other establishments.

"There must be evidence," the court said in its written decision. "Lawyers' talk is insufficient."

The original ordinance was championed by then-Mayor Bart Peterson and approved by the City-County Council in 2003. It led to a court challenge from four businesses -- Annex Books, Keystone Video, Lafayette Video & News and New Flicks -- and to court arguments in 2005.

What happens next?

Jon Mayes, the chief litigation counsel for the city, said it has several options. It could appeal to the U.S. Supreme Court, ask a full panel of judges from the 7th U.S. Circuit Court of Appeals to hear the case or go back to the original court of Judge Sarah Evans Barker and try to produce the evidence the panel had sought.

Because the court case is four years old, Mayes said it could be that new data are readily available to support the city's position. Although the panel's ruling opens the possibility of Sunday operations for adult bookstores, Mayes said: "There's a lot of ways to fix this." "This fight is not over," he said.

Even if the ruling stands, neither side predicted a sudden and major proliferation of adult bookstores in Indianapolis.

Kammen, the attorney for the bookstores, said a tough economy is a natural barrier. But so is the Internet, which has made pornography more easily accessible to the public -- even without leaving one's home. * * *

The 2003 ordinance expanded the definition of "adult entertainment businesses" from those that get half of their revenue from adult books, magazines, films and devices to those who get as little as 25 percent of their revenue from such items. It required that the businesses be well-lit and sanitary and closed between midnight and 10 a.m. Monday through Saturday, and closed Sundays.

[Updated 9/6/09] Indianapolis attorney Bill Groth writes:

Thanks for the report about the long-delayed decision in the City of Indianapolis v. Annex Books case.

Judge Easterbrook writes, four years after the Court heard oral argument, that to justify its restrictions on adult book establishments Indianapolis must come forward with "evidence. Lawyers' talk does not suffice."

From my standpoint, nearly two years after the Supreme Court heard oral argument in the voter ID case, I only wish the Court had held the State of Indiana to the same quantum of proof to justify Indiana's photo ID requirements for voting and required it to prove rather than simply assuming the existence of imposter voting.

I've made this observation before, but Annex Books is yet another reminder that the federal constitution has now been construed by the Roberts Court in a manner that offers greater protection from governmental restrictions for adult entertainment activities than it does for voting. I have to believe those who drafted the Bill of Rights and the post-Civil War amendments could not have intended this result.

Friday, September 04, 2009

An Illinois district court has allowed a couple to sue their bank on the novel grounds that it may have failed to sufficiently secure their account, after an unidentified hacker obtained a $26,500 loan on the account using the customers’ user name and password.

As initially reported by legal blogger, David Johnson, Marsha and Michael Shames-Yeakel sued Citizens Financial Bank in 2007 in the northern district of Illinois on several grounds, including a claim that the bank failed to provide state-of-the-art security measures to protect their account.

U.S. District Judge Rebecca Pallmeyer refused last week to grant a summary judgment in favor of Citizens Financial, stating in her ruling that “assuming that Citizens employed inadequate security measures, a reasonable finder of fact could conclude that the insufficient security caused Plaintiffs’ economic loss.” * * *

Citizens used a company named Fiserv to provide its online banking services, including information security services, and argued that Fiserv had a solid reputation in the banking industry and that its security measures were not the cause of the money transfer.

The bank also pointed to its online user agreement, which it said released it of liability. The agreement stated to customers that it would “have no liability to you for any unauthorized payment or transfer made using your password that occurs before you have notified us of possible unauthorized use and we have had a reasonable opportunity to act on that notice.”

Judge Pallmeyer, however, was not convinced. She found court precedents showing that financial institutions have a common law duty to protect their customers’ confidential information against identity theft. Specifically, Indiana courts — where the Shames-Yeakels live — have held that a bank “has a duty not to disclose information concerning one of its customers unless it is to someone who has a legitimate public interest.” The judge therefore concluded in part that, “If this duty not to disclose customer information is to have any weight in the age of online banking, then banks must certainly employ sufficient security measures to protect their customers’ online accounts.”

With regard to Citizens’ slow rollout of tokens to customers, Judge Pallmeyer stated that, “In light of Citizens’ apparent delay in complying with FFIEC security standards, a reasonable finder of fact could conclude that the bank breached its duty to protect Plaintiffs’ account against fraudulent access.”

Be concerned. When the ILB posted this story July 27th from the Louisville Courier Journal about the theft of $415,000 of Bullitt County Kentucky's funds by Ukrainian hackers, it seemed an isolated incident.

Not so, according to this story today in the Washington Post, reported by Brian Krebs, and headed "European Cyber-Gangs Target Small U.S. Firms, Group Says."

The WAPO story is a "must read."

Re the 8/21/09 opinion in Shames-Yeakel v. Citizens Financial Bank (ND Ill., ED), it turns out that the bank has branch locations in NW Indiana and the Chicago area, and the plaintiffs reside in Crown Point. Plaintiffs "were customers of Citizens who fell victim to identity theft when an unknown person gained access to their online account and stole $26,500 from a home equity credit line. When Plaintiffs refused to pay Citizens for the loss, the bank reported their account as delinquent to the national credit bureaus and threatened to foreclose on Plaintiffs’ residence."

From p. 18 of the opinion:

Finally, Plaintiffs claim that Citizens acted negligently in a number of ways. The parties agree that Indiana law applies to this claim. In order to prove negligence in Indiana, a plaintiff must establish a duty owed by the defendant to conform its conduct to a standard of care arising from its relationship with the plaintiff; a breach of that duty; and an injury proximately caused by the breach of that duty. Benton v. City of Oakland City, 721 N.E.2d 224, 232 (Ind. 1999). Plaintiffs here argue that Citizens was negligent in violating the various statutory duties discussed above, and also in failing to sufficiently protect their accounts from fraudulent access in the first place. * * *

The unique issue within Plaintiffs’ negligence claim is their argument that Citizens breached its duty to sufficiently secure its online banking system. A number of courts have recognized that fiduciary institutions have a common law duty to protect their members’ or customers’ confidential information against identity theft. See, e.g., Jones v. Commerce Bancorp, Inc., (S.D.N.Y. May 23, 2006); Bell v. Mich. Council 25 of Am. Federation of State, County, Municipal Employees, (Mich. Ct. App. Feb. 15, 2005) (per curiam). Although this court could not find an Indiana case addressing the matter,
Indiana courts have held that a bank “has a duty not to disclose information concerning one of its customers unless it is to someone who has a legitimate public interest.”Ind. Nat. Bank v. Chapman, 482 N.E.2d 474, 482 (Ind. Ct. App. 4th Dist. 1985) (citing Cont’l Optical Co. v. Reed, 119 Ind. App. 643, 86 N.E.2d 306 (1949)). If this duty not to disclose customer information is to have any weight in the age of online banking, then banks must certainly employ sufficient security measures to protect their customers’ online accounts.

Courts - EEOC award of nearly $330,000 in damages to a former Marion County chief deputy coroner who claimed reverse discrimination

The city likely will appeal a federal agency's award of nearly $330,000 in damages to a former Marion County chief deputy coroner who claimed he was fired because he is white.

John Linehan's demotion and firing by then-Coroner Kenneth Ackles, who is black, in late 2005 abruptly ended a 20-year association with the office. Linehan started as a full-time deputy coroner in 1999 but had worked earlier as a consultant and part-time employee.

The U.S. Equal Employment Opportunity Commission last week upheld a 2007 finding in Linehan's favor on race discrimination and retaliation claims. It cited substantial evidence that Ackles used job-performance reasons as a cover for firing Linehan and said he had stated a preference for hiring African-Americans.

A city attorney disputed the discrimination conclusion Tuesday and said a federal appeals court would be likely to at least reduce what the city sees as excessive damages.

More from the story:

The commission's decision affirmed an administrative law judge's 2007 finding, which the city had appealed, and awarded Linehan $200,000 in compensatory damages for emotional distress; $129,600 for about two years of lost pay, reduced from the 2007 decision by $34,000; and $62,000 to cover Linehan's attorneys fees and costs.

Few cases result in such high damage awards, [Jon Mayes, the city's chief litigation counsel] said. Federal law limits compensatory damages alone to $300,000, and he called $35,000 a more typical "rule of thumb."

But the 7th U.S. Circuit Court of Appeals in Chicago often reduces EEOC awards even more, Mayes said, making a new appeal attractive.

Ind. Courts - "'Special master' OK'd in Gabriele will case"

The Indiana Supreme Court has ruled that an estate expert should oversee the complex dispute surrounding the late Dr. Philip Gabriele's estate.

St. Joseph Circuit Court Judge Michael G. Gotsch recently requested the appointment of "special master" in the Gabriele case because of the series of complicated case factors.

The lawsuit filed by Jon Alex Dawson, brother of Marcella Gabriele, alleges that Gabriele's will — which does not include his wife's name — was improperly executed and the doctor was under "undue influence" when he penned the document. The case involves several atypical issues including: the circumstances behind Gabriele's death, the legal effect of the decedent's presumed involvement in the death of his wife, and the competing interests and claims of heirs.

The Supreme Court recently approved the recommendation, and Gotsch this week assigned estate expert Richard B. Urda Jr. as the special master, according to court documents.

A "special master" is a particular expert assigned in certain cases to oversee the proceedings. * * *

A new executor was named last month to handle the Gabrieles' will after Dawson's attorneys argued that the former executor, Susan Manuszak, might be biased considering her involvement in the case.

INDIANAPOLIS (September 3, 2009) – Indiana State Treasurer Richard Mourdock today filed a petition with the Supreme Court of the United States (SCOTUS) on behalf of the Indiana State Police Pension Trust, the Indiana Teachers Retirement Fund, and the Major Moves Construction Fund because of losses incurred by the actions of the U.S. Department of Treasury during the Chrysler, LLC bankruptcy. At a minimum, Indiana’ funds lost $6,000,000 in value during the bankruptcy sale.

“The appeal to the Supreme Court of the United States underscores the point that decisions by the U.S. Bankruptcy Court of New York in the Chrysler case were inconsistent with longtime, established bankruptcy code and therefore contributed to reductions in the value of Indiana’ funds,” explained Treasurer Mourdock. “As a fiduciary for these funds, which were negatively impacted because of errors in the bankruptcy process and inappropriate actions by the federal government, I must take every step to see those monies are fully recovered.”

In early June, SCOTUS initially issued a “stay,” which halted the bankruptcy sale of Chrysler, LLC. The following day, SCOTUS allowed the bankruptcy sale to proceed, and the claims of all other secured creditors were extinguished. Indiana’ pensioners, however, had the chance to appeal in part because of their objection filed in Chrysler bankruptcy, which went to the steps of the U.S. Supreme Court.

Mourdock also made the point, “We are not asking for the bankruptcy sale of Chrysler to be reversed, which is legally impossible, but the losses to our funds are very real. I can’ cease to act in gaining equitable treatment that is consistent with longstanding bankruptcy law. From the beginning, I have consistently stated that the federal government must follow the law and that is why the appeal was filed,” emphasized Treasurer Mourdock.

Legal services pertaining to the SCOTUS’appeal have been performed by the Indiana Attorney General’ Office; therefore, no legal fees or costs associated with this appeal were incurred by Indiana’ funds or Hoosier taxpayers.

Ind. Decisions - Court of Appeals issues 0 today (and 14 NFP)

For publication opinions today (0):

NFP civil opinions today (6):

Lokmar Abdul-Wadood v. Officers Cross and Stang (NFP) - "Lokmar Abdul-Wadood, a prisoner at the Westville Correctional Facility, appeals pro se the small claims court's judgment in favor of Officers Cross and Stang (the “Officers”) on Abdul-Wadood's notice of claim. For our review, Abdul-Wadood raises two issues, which we restate as: 1) whether the small claims court erred when it entered judgment for the Officers,1 and 2) whether the small claims court erred when it refused to admit Abdul-Wadood's rebuttal evidence. Finding no error, we affirm."

Cheyenne Sorrill v. Southern Erectors (NFP) - "Cheyenne Sorrill (“Sorrill”) appeals an order of the Full Worker’s Compensation Board of Indiana (“the Board”), affirming the Single Hearing Member’s (“the Single Member”) decision whereby Sorrill was awarded compensation upon his claims arising from his permanent partial impairment and temporary total disability, and from bad faith conduct of Southern Erectors’ worker’s compensation insurer, but was denied an order for the payment of future medical benefits. We affirm in part, reverse in part, and remand for further proceedings."

Henry and Andrea Leopold appeal from the trial court's grant of summary judgment to Robert and Nancy Boone. The Leopolds raise a single issue for our review, which we restate as whether a genuine issue of material fact precludes summary judgment in favor of the Boones on the Leopolds' claims for negligence. We affirm. * * *

The crux of this appeal is whether the Boones, as lessors of the property, owed a duty to Henry to prevent the dogs from entering onto State Road 38. The Boones rely upon Blake v. Dunn Farms, Inc., 274 Ind. 560, 413 N.E.2d 560 (Ind. 1980), for the proposition that only the owner and keeper of the dogs, and not the lessor of the property on which the dogs are kept, can be held liable for injuries caused by the dogs. The Leopolds attempt to distinguish Blake on several grounds. We agree with the Boones that Blake is controlling authority and stands for the proposition that the Boones did not owe a duty to Henry. * * *

That law is clear and mandates summary judgment in favor of the Boones, and the Leopolds do not suggest on appeal that Blake was wrongly decided or that its holding should be changed.[1]
_________
[1] Not that such an argument would prevail in this court. See Horn v. Hendrickson, 824 N.E.2d 690, 695 (Ind. Ct. App. 2005) (“[T]he Court of Appeals is well aware of the controlling precedents of our supreme court and has no desire to proceed in conflict with them. We are an intermediate appellate court.”).

Yvonne Williams v. Wesley W. Williams (NFP) - "Yvonne Williams (“Yvonne”) appeals the trial court's order requiring her to reimburse $11,582 to Wesley Williams (“Wesley”) for his overpayment of child support. Yvonne raises a number of issues, which we consolidate and restate as follows: I. Whether the trial court properly excluded Yvonne's Exhibit A from evidence; and II. Whether the trial court's judgment is supported by sufficient evidence. We affirm and remand."

Paternity of A.W.; A.W. v. J.R. (NFP) - "Here, the trial court dismissed the paternity action due to a lack of service on J.R. However, the record indicates that J.R. was served with a copy of the paternity petition on January 20, 2005. Thereafter, attorney Monty Arvin filed an appearance as J.R.’s counsel on February 28, 2005. Because J.R. was served with a copy of the paternity petition, the trial court erred in dismissing this action due to lack of service and abused its discretion by denying Mother’s motion for relief from order of dismissal.
Reversed and remanded."

Ind. Decisions - 7th Circuit decides one Indiana case today

Dick Noel was charged with
producing and possessing child pornography in violation
of 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B). A jury
found Noel guilty on all counts, and on June 1, 2007, the
district court sentenced Noel to eighty years’ imprisonment
to be followed by a lifetime of supervised release.
Noel now appeals his conviction, arguing that (1) the district court erred in allowing Indiana State Police Detective
Jennifer Barnes to testify that certain images in evidence
met the federal definition of child pornography,
and (2) the court’s jury instruction regarding the definition
of a “lascivious exhibition of the genitals,” which
was derived from United States v. Dost, 636 F. Supp. 828,
832 (S.D. Cal. 1986), was confusing to the jury. Noel also
claims that his sentence was unreasonable and that the
district judge failed to personally address him and offer
him the opportunity to allocute. Although we find the
government’s approach in submitting certain evidence
at trial troubling, none of the errors below require
reversal of Noel’s conviction or sentence.

Courts - Even more on: "You don’t see newspapers fighting to open court proceedings the way they used to, and people are starting to notice"

That title is from a column by Adam Liptak of the NY Times, discussed in this ILB entry Sept. 1st, along with a story from the Louisville Courier Journal quoting from a story headed "Judge closes Stinson jury selection to media."

Well, the LCJ did fight this week. See this ILB entry from Sept. 2nd, quoting another LCJ story:

Jon Fleischaker, an attorney representing the newspaper, asked for a hearing, saying the media has a right to attend jury selection.

“The press is the eyes and ears of the public,” he told the judge.

Fleischaker noted the newspaper won a similar argument five years ago when Judge Judith McDonald-Burkman barred the media from the courtroom during jury selection in the murder trial of then Louisville Metro Police Detective McKenzie Mattingly.

Gibson asked for a copy of that ruling and the court took a break.

Later in the afternoon, she agreed to let a Courier-Journal reporter into the courtroom, but said other reporters would have to wait to enter until some potential jurors had been dismissed — only a certain number of people were allowed in the courtroom because of fire codes, she said.

Ind. Gov't. - More on: "Indiana Funds May Not Be Done with Chrysler"

This June 24th ILB entry quoted a Business Week story that began: "Indiana Treasurer Richard Mourdock is contemplating yet another legal challenge to the terms under which Chrysler sped through reorganization." More from the story:

The Indiana pension funds that went all the way to the Supreme Court to try to stop the sale of Chrysler to Italy's Fiat Auto (FIA.MI) might be back again. Indiana Treasurer Richard Mourdock is mulling a legal motion to get the nation's highest court to rule whether the sale—which was finalized in bankruptcy court on June 10—was valid. * * *

If Mourdock decides to file the motion, the pension plans' hired counsel, aggressive Florida attorney Tom Lauria, will work pro bono. But the state's Solicitor General would also work on the case.

Today* the State of Indiana filed a petition for writ of certiorari before the Supreme Court of the United States.

After providing Chrysler interim financing in
January 2009, the U.S. Treasury conditioned the
additional financing needed for Chrysler’s survival
on a restructuring that would provide billions to
Chrysler’s unsecured trade and labor creditors but
leave secured creditors with only partial payment.
Treasury then directed Chrysler to reorganize in a
transaction that would be approved on an emergency
basis under section 363 of the Bankruptcy Code
rather than through confirmation of a chapter 11
plan. After Chrysler filed for bankruptcy, the court
imposed a 15-day deadline for final competing bids,
which were required to adopt Treasury’s prescribed
treatment of Chrysler’s unsecured creditors. As
expected, no competing bidders came forward, and
31 days after Chrysler commenced its chapter 11
case, the court approved a transaction disposing of
nearly all of Chrysler’s assets on Treasury’s terms.
Chrysler’s first lien lenders received a liquidationbased
recovery while unsecured creditors received
over $20 billion of going-concern value in cash, new
notes and stock from the reorganized business.
Affirming, the Second Circuit declared that “[t]he
‘side door’ of § 363(b) may well ‘replace the main
route of chapter 11 reorganization plans.’”

The question presented is whether section 363
may freely be used as a “side door” to reorganize a
debtor’s financial affairs without adherence to the
creditor protections provided by the chapter 11 plan
confirmation process.

_______* Note that this ILB entry was orginally posted yesterday, Sept. 3rd, but reposted today with a link and quotes to the petition.

Thursday, September 03, 2009

This ILB entry from August 24th was headed "Annex Books and New Albany DVD still awaiting decisions; September will mark the 4th anniversaries of their oral arguments before the 7th Circuit.". It began:

Indianapolis revised its adultbusiness
ordinances in 2003. These amendments expanded the
definition of “adult entertainment business” to include any retail
outlet that devotes 25% of more of its space or inventory to,
or obtains at least 25% of its revenue from, adult books, magazines,
films, and devices. (Adult “devices” include vibrators, dildos,
and body-piercing implements.) See Indianapolis Rev.
Code §807-103. Until 2003 the trigger had been 50%. Any
“adult entertainment business” needs a license, must be well lit
and sanitary, and may not be open on Sunday or between mid-night and 10 a.m. on any other day. Indianapolis Rev. Code
§§ 807-202(a), -301(f), -302.

Four firms defined as “adult entertainment businesses” under
the revised ordinance filed this suit, contending that the
law violates the first and fourth amendments, applied to the
states by the fourteenth. The district court enjoined one portion
of the amended ordinance and held that plaintiffs are entitled
to notice of inspections. 333 F. Supp. 2d 773, 787–89 (S.D.
Ind. 2004). Indianapolis has not appealed from that portion of
the decision. The district court rejected plaintiffs’ argument
that the procedures for the issuance and judicial review of licenses
permit the City to take too long, or afford it too much
discretion. Id. at 778–83. Plaintiffs contest that portion of the
decision, but it is supported by Littleton v. Z.J. Gifts D-4, L.L.C.,
541 U.S. 774 (2004), and Thomas v. Chicago Park District, 534 U.S.
316 (2002). Indianapolis gives businesses provisional licenses
while judicial review proceeds, Rev. Code §807-207(c), so its
ordinance is easier to defend than the one sustained in Littleton.
See Andy’s Restaurant & Lounge, Inc. v. Gary, 466 F.3d 550, 556
(7th Cir. 2006). We have nothing else to add to this portion of
the district court’s thoughtful opinion.

That leaves plaintiffs’ challenge to the definition of “adult
entertainment business” and the imposition of any limits on
these firms, other than whatever rules apply to bookstores and
video-rental outlets in general. * * *

The parties have pressed on us dozens of precedents, from
this circuit and elsewhere, that do more to show the problems
of interpretation and application created by the fractured decision
in Alameda Books than to establish any concrete legal rule. * * *

But one of these decisions, in addition to Abilene Retail
(cited above), offers a little assistance. San Antonio adopted a
dispersal rule (1,000 feet between adult businesses) that applied
to a set of outlets defined to include stores that did nothing but
sell books, tapes, and DVDs, which customers could not watch
on premises. The fifth circuit held in Encore Videos, Inc. v. San
Antonio, 330 F.3d 288 (5th Cir. 2003), that this ordinance violated
the first amendment, because San Antonio had not offered
any evidence that adult video stores lacking facilities for
on-premises viewing create the same secondary effects as other
establishments. If Indianapolis cannot produce such evidence,
satisfying Justice Kennedy’s cost-benefit standard, its ordinance
must meet the same fate as San Antonio’s.

The judgment is affirmed to the extent that it sustained the
licensing procedures but is reversed to the extent it concerns
the coverage and substantive requirements, and the case is remanded
for an evidentiary hearing consistent with this opinion.

Editor’s note: When Superior Court II Judge Stephen Jessup presented his court’s budget to the Howard County Council during the budget hearings, he didn’t offer up a lot of ideas to cut costs, but had plenty to say about how the prosecutor’s office costs the county time and money. He accused prosecutors of lowering and dismissing charges when they fall behind with the trial schedule. Here’s a transcript of what he said.

The Judicial Conference, in its continuing efforts to ensure appropriate public access to court files, has voted to make federal court sealed cases more readily apparent.

The Conference, acting at its March 17 meeting, voted to have Internet lists of civil and criminal cases in district courts include a case number and generic name, such as “Sealed vs. Sealed,” for each sealed case.

Such lists for each of the 94 district courts are generated by the Judiciary’s Case Management/Electronic Case Files system and are accessible through the Public Access to Court Electronic Records (PACER) system.

Currently, PACER lists of sequentially numbered district court cases skip the sealed cases, but a member of the public could query the missing case number directly and would see a message stating that the case “is under seal.”

The Conference in 2007 strongly encouraged district courts to change the message that PACER users receive when querying a sealed case—from “this case does not exist” to “this case is under seal.” The latest Conference action is consistent with and further implements the 2007 Conference policy by providing the public with information to confirm the existence of a sealed case.

The Conference left it up to the individual district courts to determine what additional information about sealed cases, such as the initials of the assigned judge or the date of filing, should be available to the public.

Ind. Gov't. - "Failed Minn. health software ends up in court "

ST. PAUL, Minn. — Six years and more than $30 million ago, the Minnesota Department of Human Services set out to improve its method for processing health insurance applications.

The vision: caseworkers and customers tapping into an electronic system that could whiz through 1,000 applications a day, determining eligibility and matching a person with the right program in about 30 seconds.

It was not meant to be.

The project called HealthMatch was finally killed last year after the price tag ballooned, the software developer changed hands three times and the relationship between project leaders and state officials soured. Now the state is defending itself against a lawsuit from the contractor it fired, Dallas-based ACS State and Local Solutions Inc.

Meanwhile, Minnesota is still years away from an electronic system that could catch frequent eligibility errors that unfairly shut out some people while letting in others who shouldn't be in — costing the state millions.

Nearly 700,000 people are covered by three state health care programs.

"It's a significant setback for the state because the need to improve eligibility determination is still there, and it has not been addressed in any really significant way," said Deborah Junod, a project manager in the Legislative Auditor's office who reviewed the project.

ACS develops government systems for everything from toll collections to electronic welfare payment cards, working on Medicaid programs in states including Alaska, Georgia, Indiana, Missouri, North Carolina and Texas.

Sounds familiar? On August 21st, a story by Ken Kusmer of the AP also referenced ASC. A quote:

A coalition of companies led by Armonk, N.Y.-based IBM Corp. and Dallas-based Affiliated Computer Services Inc. ( ACS) privatized Indiana's processing of food stamps, Medicaid and other welfare benefits under a 10-year contract, now worth $1.34 billion, signed by Daniels in December 2006. * * *

Clients, advocates and lawmakers have harshly criticized the privatization initiative under which the state turned over 1,500 state welfare case workers to ACS in March 2007 and began rolling out automation including telephone call centers, a Web site and document imaging. Critics complain of lost documents, delays in approving benefits, lengthy call hold times and other problems.

Ind. Law - "Sex offender ban gains steam"; "The Supreme Court did not provide guidance on this issue . . . by refusing to hear an appeal"

Lebanon may follow the lead of several other area municipalities in banning sex offenders from public parks, but the possibility for such a law in Zionsville remains uncertain.

Last month, the Indiana Supreme Court declined to overturn Plainfield's ban on sex offenders in public parks, spurring Lebanon to move forward with writing a similar ordinance. Lebanon Mayor Huck Lewis said attorney Eileen Sims is drafting the ordinance, which will likely be presented to the City Council Sept. 14.

"We want to make sure we've researched it well and we're doing the right thing," Lewis said.

Lewis said an appeals process could be included in the ordinance, allowing certain offenders to be able to go to events with their family.

More than 50 registered sex offenders live in Lebanon, a handful within a few blocks of public parks.

In an earlier interview, Ken Falk, legal director of the American Civil Liberties Union of Indiana, said wanting to protect children was a noble goal, but he questioned whether such bans were effective.

"If a sex offender is going to a park (for criminal purposes), is a fine going to deter them from a crime they could go to prison for?" Falk asked.

Zionsville Town Manager Ed Mitro said a sex offender ban was discussed in 2006 after an assault on an 8-year-old boy on a YMCA trip at Creekside Park.

Mitro said the council decided to wait until the courts weighed in on the Plainfield ban. Now that it's settled, Mitro said the Town Council may move forward with a ban, although it may be a while due to other business facing the council.

"With as much as we have going on I don't know if we're going to have time," Mitro said. "We've got a lot of other fish to fry."

Council President Matt Price said in an e-mail Tuesday the council discussed the situation informally earlier this year while waiting on the Supreme Court's decision.

"I had understood that the Supreme Court did not provide guidance on this issue . . . by refusing to hear an appeal," Price said. "My sense is that the law is still quite unsettled in this area and that there are likely better ways to protect the public, rather than inviting lawsuits from the ACLU."

Ind. Decisions - Two today from the Supreme Court

In this post-dissolution action the Indiana trial court relinquished its jurisdiction over matters of child support to a California trial court. At issue is the interplay between the Full Faith and Credit for Child Support Orders Act and the Uniform Interstate Family Support Act. We affirm the judgment of the trial court. * * *

Father appealed and the Court of Appeals affirmed the judgment of the trial court. In doing so the Court of Appeals reviewed Indiana's version of the Uniform Interstate Family Support Act (“UIFSA,” sometimes referred to as the “Uniform Act”) and the federal Full Faith and Credit for Child Support Orders Act (“FFCCSOA,” sometimes referred to as the “Federal Act”). The court determined: (1) Father was not a resident of Indiana within the meaning of the Federal Act, and (2) the Federal Act preempts the Uniform Act because of a conflict between the two statutes. Basileh v. Alghusain, 890 N.E.2d 779 (Ind. Ct. App. 2008). We granted transfer to address the Court of Appeals' preemption determination. We summarily affirm its determination concerning residency. * * *

In concluding that the Federal Act preempts Indiana's version of the Uniform Act, the Court of Appeals determined there was a “crucial” distinction between the two; namely, the Uniform Act requires the parties' written consent to another state's jurisdiction, whereas the Federal Act does not. Basileh, 890 N.E.2d at 785. This conclusion hinged on the court's interpretation of the word “or” in I.C. § 31-18-2-5 that links subsection (a)(1) (the nonresidency requirement) and subsection (a)(2) (the consent requirement). * * *

The application of general rules of federal preemption leads us to conclude that Congress did not intend the Federal Act to preempt the Uniform Act. Rather, it appears that FFCCSOA was intended to follow the contours of UIFSA. There is no indication in the text of FFCCSOA or its legislative history of any intent to preempt UIFSA. And importantly for our purposes the specific provisions here at issue in Indiana's version of the Uniform Act – the nonresidency requirement and the consent requirement – are closely modeled after the federal version of the Uniform Act. “The very fact that Congress mandated that all fifty states adopt UIFSA strongly mitigates against a construction of FFCCSOA that would impliedly preempt UIFSA to any degree.” LeTellier v. LeTellier, 40 S.W.3d 490, 498 (Tenn. 2001). We therefore also conclude that the FFCCSOA does not preempt the Indiana version of UIFSA. * * *

Although we conclude Congress did not intend that the Federal Act preempt Indiana's version of the Uniform Act, we do acknowledge the Uniform Act contains a jurisdictional provision that is absent in the Federal Act, namely: a consent requirement. More specifically, I.C. § 31-18-2-5(a) essentially provides that an Indiana court retains continuing, exclusive jurisdiction “if” a party or related child remains in Indiana, “or until” each party has filed written consent to jurisdiction elsewhere. The Court of Appeals in this case interpreted this provision to mean that Indiana retains jurisdiction unless both of these conditions are met. The net effect of the court's interpretation is that in order for Indiana no longer to retain continuing jurisdiction both the nonresidency requirement and the written consent requirement must be met. However we are of the view that the statute is ambiguous on this point because it is susceptible to an alternative interpretation. * * *

In this case it is of no moment that the parties did not file a written consent with the Indiana court for the California court to modify the Indiana support order. Rather, the Indiana court lost its jurisdiction because Father, like Mother and the children, is no longer an Indiana resident.

Interpreting an insurance policy as including set-off and anti-stacking provisions, the trial court granted summary judgment in favor of Insurer. Concluding both provisions are ambiguous, we strictly construe the policy against the Insurer and reverse the judgment of the trial court. * * *

I * * * Applying our strict construction review to the set-off provision in American Family's Insurance's policy, we conclude the trial court erred in granting summary judgment in favor of American Family. On this issue the judgment of the trial court is reversed.

II * * * We are of the view that at most the provision at issue is not an anti-stacking provision at all; and at least the provision is ambiguous and therefore unenforceable. Because of this ambiguity we strictly construe the provision against American Family and in favor of Wagner. See Beam, 765 N.E.2d at 528. On this issue the trial court also erred in granting summary judgment in American Family's favor.

Mike Stoffel and Rose Stoffel brought an action against Jon Huff and Mary Huff alleging breach of contract and constructive fraud. The trial court found in favor of the Stoffels and awarded them $11,525 in damages, $14,036.10 in attorney’s fees, and costs. The Huffs appealed, and this court reversed and remanded for vacation of the trial court’s judgment on two grounds: (1) the trial court’s finding of constructive fraud was based upon an unreasonable interpretation of the contract; and (2) the contract was unenforceable under Indiana Code section 32-21-5-10(c) (2005). The Stoffels filed a petition for rehearing, pointing out that Indiana Trial Rule 9(C) requires a party denying the occurrence of a condition precedent—such as compliance with section 32-21-5-10(c)—to plead it with particularity, which the Huffs did not do. Accordingly, we grant the petition for rehearing, vacate that part of our earlier decision concluding that the contract was unenforceable under section 32-21-5-10(c), remand to the trial court for a factual determination on this issue, and consider the Huffs’ recusal challenge. In all other respects we affirm our original decision.

WASHINGTON — The pharmaceutical giant Pfizer agreed to pay $2.3 billion to settle civil and criminal allegations that it had illegally marketed its painkiller Bextra, which has been withdrawn.

It was the largest health care fraud settlement and the largest criminal fine of any kind ever. * * *

The government charged that executives and sales representatives throughout Pfizer’s ranks planned and executed schemes to illegally market not only Bextra but also Geodon, an antipsychotic; Zyvox, an antibiotic; and Lyrica, which treats nerve pain. While the government said the fine was a record sum, the $2.3 billion fine amounts to less than three weeks of Pfizer’s sales.

Much of the activities cited Wednesday occurred while Pfizer was in the midst of resolving allegations that it illegally marketed Neurontin, an epilepsy drug for which the company in 2004 paid a $430 million fine and signed a corporate integrity agreement — a companywide promise to behave.

John Kopchinski, a former Pfizer sales representative whose complaint helped prompt the government’s Bextra case, said that company managers told him and others to dismiss concerns about the Neurontin case while pushing them to undertake similar illegal efforts on behalf of Bextra.

“The whole culture of Pfizer is driven by sales, and if you didn’t sell drugs illegally, you were not seen as a team player,” said Mr. Kopchinski, whose personal share of the Pfizer settlement is expected to exceed $50 million. Mr. Kopchinski left Pfizer in 2003.

Altogether, six whistle-blowers will collect $102 million from the federal share of the settlement and more from states’ shares. Forty-nine states and the District of Columbia will collect $331 million, with New York State alone getting $66 million. Only South Carolina chose not to participate in the settlement.

Under the settlement with Pfizer, the total obtained for the Indiana Medicaid program -- including both the federal and state share -- will be $9,520,231.16 in restitution and other recovery. Of that, the state’s share of the multi-state settlement will be $3,694,888.19.

Indiana Attorney General Greg Zoeller noted that the settlement is based on nine qui tam cases (pronounced “key tam”) involving whistleblowers: nine private individuals who filed lawsuits under state and federal False Claims laws. The suits were filed in federal courts in Massachusetts, Pennsylvania and Kentucky and later consolidated into one case; none of the whistleblowers are from Indiana.

“This case highlights the importance of qui tam laws that allow whistleblowers to file suit on behalf of the government to recover public funds paid on false claims,” Zoeller said. “Our office will work aggressively with employees in whistleblower cases to unearth fraud against the public treasury and recoup funds on behalf of taxpayers.”

Allen Pope, director of the Indiana Medicaid Fraud Control Unit, said, “This is the type of result the Indiana Legislature hoped for when it adopted a whistleblower False Claims Act. Nine whistleblowers, insiders who knew what Pfizer was doing, are sharing a substantial financial reward for their help in calling the government’s attention to this illegal activity.” * * *

Through a complex reimbursement process established by federal law, all of the whistleblowers’ share will be paid out of the federal share of Indiana’s recovery

Wednesday, September 02, 2009

Courts - Federal court officials recoil at RECAP

Recall this ILB entry from August 26th headed "Changes in store for PACER?" and this one from March 1 quoting Senator Lieberman's letter to the federal courts asking why they continue to charge $0.08 per page for access to documents?

Earlier this month a resource called RECAP (PACER spelled backwards) was introduced as a Firefox add-on. RECAP automatically adds a duplicate of whatever a user downloads from PACER to a public archive hosted by the Internet Archive. It also shows you if your item has already been downloaded, saving you the $0.08 per page.

The ILB hasn't installed RECAP, for the reason that most of my PACER downloads are opinions, and there is no charge for opinions on PACER.

But various federal court officials have reacted strongly. For one, they immediately sent out to all libraries and other entities that have free PACER privileges an announcement that they were prohibited from using RECAP.

Mary Pat Gallagher of the New Jersey Law Journal today has a long article about RECAP, headed "Free Web Access to Judicial Records Gladdens Public but Worries Some Courts." The article ends with a useful quote from Michel Ishakian, chief of the Public Access and Records Management Division of the Administrative Office of the Courts:

The bottom line, says Ishakian, is "when people pay for access, they can do with those documents what they will."

Ind. Gov't. - New public access counselor, and new head of DFI, named by Governor [Updated]

Here is the press release:

Governor Mitch Daniels today named former bank executive David Mills as director of the Indiana Department of Financial Institutions (DFI) and attorney Andrew J. Kossack as state public access counselor.

Mills, of Zionsville, previously worked in corporate banking for more than 37 years with National City Bank, retiring in 2007 as senior vice president and deputy chief credit officer. As DFI director, he will serve as the chief executive and administrative officer of the state agency that provides regulatory oversight of state chartered financial institutions. Mills received his undergraduate degree from Indiana University - Bloomington and is a graduate of the Herbert V. Prochnow Graduate School of Banking at the University of Wisconsin. He currently serves as the director of programs for the Indiana Office of Faith Based and Community Initiatives.

Mills will replace Judith Ripley, who has served as DFI director since July 2005. She is leaving her post and will join Capitol Assets, LLC in Indianapolis. Ripley has a combined 11 years of regulator oversight service in state government, first at the Indiana Utility Regulatory Commission and then with DFI.

Kossack, of Carmel, is currently a labor and employment law associate at Barnes & Thornburg LLP in Indianapolis. He received his undergraduate degree from Butler University and his law degree from Indiana University School of Law – Indianapolis. He previously served as a law clerk for United States Magistrate Judge William T. Lawrence and was editor of the Indiana Law Review. As public access counselor, Kossack will provide advice and assistance concerning Indiana's public access laws to members of the public and government officials and their employees. He replaces Heather Neal, who has joined the Indiana Department of Education as deputy chief of staff.

The appointments of Mills and Kossack will be effective September 7.

[Update] Perhaps the Governor's press person got it wrong. According to his B & T resume, apparently no longer available except via the Goggle cache, Mr. Kossack was "an editor," not "the editor," of the Indiana Law Review, and was not "a law clerk," but "an intern," to United States Magistrate Judge William T. Lawrence. On the other hand, a number of Mr. Kossack' very laudable accomplishments were not mentioned in the release today.

Ind. Decisions - Supreme Court decides one

Employing an arrangement relatively common to dissolution decrees, the trial court awarded the marital residence to the wife and ordered her to pay husband a share of its value when any one of certain later events occur. Husband argues that the statute on civil judgments entitles him to post-judgment interest running from the date of the dissolution decree. We hold instead that the dissolution statutes authorize a court to assess interest, or not, in the course of fashioning a just division of assets.

Ind. Decisions - Court of Appeals issues 4 today (and 12 NFP)

For publication opinions today (4):

This case, Bradley G. Shively v. State of Indiana , brings up the issues relating to court-appointed counsel for the indigent. The ILB has looked at this issue most recently in the August 20th entry, "Channel 6 finds public defender appointed upon request, with no effort at determining financial need." In today's 11-page opinion, Judge Barnes writes:

Bradley Shively appeals his convictions for Class D felony domestic battery, Class A misdemeanor battery, and Class D felony criminal confinement, for which the trial court entered judgment as a Class A misdemeanor. We reverse and remand.

[The opinion goes into a thorough discussion of Shively's finances and the applicable law.]

Although we understand the reluctance of a trial court to appoint an attorney for one who may be “gaming the system,” in this instance we do not believe sufficient care was given to a close examination of Shively’s financial situation. The pre-trial inquiries regarding indigency were not ones that truly analyzed Shively’s means to pay for a private attorney. Such hearings should have considered not only his actual income as of the time of the hearings, but also his fixed monetary obligations, including his obligations to his family. The trial court conducted a proper, more thorough examination of Shively after trial, and its conclusion at that time that Shively was indigent is inconsistent with its earlier findings that he was not. In other words, the trial court abused its discretion in refusing to appoint counsel for Shively before trial because it lacked sufficient information to conclude that he was not indigent at that time.

We reverse Shively’s convictions because the trial court failed to adequately ascertain before trial whether he was indigent for purposes of court-appointed counsel. If it were not for the fact that Shively was found indigent after trial, we might remand for the trial court to further consider whether Shively is indigent. As this case stands now, however, Shively is indigent and should be considered to still be so for purposes of further proceedings on remand, unless there is evidence his financial situation has markedly improved.

Appellant-plaintiff Portside Energy Corporation (Portside) appeals the trial court's grant of summary judgment in favor of appellee-defendant Northern Indiana Commuter Transportation District (NICTD), in which the trial court denied Portside's request for a declaratory judgment. Specifically, Portside argues that the trial court erred in determining that an indemnification agreement between Portside and NICTD was enforceable as a matter of law. Portside also maintains that the trial court erred in ordering it to pay NICTD's attorneys fees and interest on the amount that it allegedly owed NICTD. Concluding that the trial court properly granted NICTD's motion for summary judgment, we affirm. * * *

In light of our discussion above, we conclude that the trial court properly determined as a matter of law that NICTD did not engage in willful and wanton misconduct so as to negate the applicability of the indemnity provisions of the agreement between Portside and NICTD. Moreover, the damages that NICTD sustained to its train cars obligated Portside to pay for the loss under the agreement. Portside has not shown that NICTD engaged in the transfer of nondelegable duties, that the agreement was a construction contract within the meaning of Indiana Code section 26-2-5-1, or that NICTD had breached the agreement.

We also note that NICTD was not estopped from pursuing its claims against Portside and NICTD did not waive its rights to proceed against it. Finally, we find that the trial court properly ordered Portside to pay NICTD's attorney fees and prejudgment interest. As a result, we conclude that the trial court properly granted NICTD's motion for summary judgment.

Bruce T. Harris and Allegheny Casualty Company (collectively “Harris and Allegheny”) appeal the trial court's denial of their motion for relief from judgment, which sought to set aside a bond forfeiture judgment. We remand.

The dispositive issue is whether the trial court provided adequate notice to Harris and Allegheny of orders to produce a criminal defendant. * * *

In the present case, we conclude that there is insufficient evidence in the record that the statutorily-required notices were mailed to both the bail agent and surety. * * * Here, the returned envelope of the notice sent to Allegheny at its listed Newark address arguably might be sufficient proof of mailing as to it, but there is no comparable evidence of mailing to Harris. Under the present statute, mailing to both the surety and the bail agent is required. * * * Instead, as to Harris there are only handwritten notations on the bottom of two court orders, which the trial court interpreted as sufficient proof that a court staff member mailed the required notices.

We cannot agree with the trial court that this was sufficient proof, even though the trial court is presumed to know its own records. * * *

We remand for further proceedings consistent with this opinion, and with directions to vacate the bond forfeiture judgment against Harris and Allegheny if no further evidence showing service of notice is forthcoming.

Austin C. Weatherspoon appeals his conviction for Class B felony robbery, contending that the jury was improperly instructed. Specifically, Indiana Jury Rule 20(a)(8) provides that jurors, including alternates, are permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence. Under Indiana law, alternates are not allowed to deliberate with the jury. Weatherspoon argues that discussions are the equivalent of deliberations and therefore he was denied his constitutional and statutory right to a jury of twelve when the alternates were instructed that they were permitted to discuss the evidence during recesses from trial. Because Jury Rule 20(a)(8) makes a clear distinction between discussions and deliberations and because there is no evidence that the alternates participated in the deliberations, we affirm Weatherspoon’s conviction.

"The sole issue for our review is whether the trial court erred in refusing to enforce Digital’s Kentucky judgment against Lynn.

"Digital argues that the trial court erred in refusing to enforce its Kentucky judgment. Specifically, Digital contends that the trial court erred when it 1) concluded that the Kentucky trial court lacked jurisdiction; 2) concluded that Digital failed to comply with the Indiana statutory service of process requirement; and 3) struck Digital’s amended affidavit as untimely filed. We address each of its contentions in turn."

Paul Phillips v. City of Richmond (NFP) - "Appellant-petitioner Paul Phillips appeals the trial court's order affirming the decision of appellee-petitioner City of Richmond, Indiana's, Police Department Merit Commission (the Commission) to demote Phillips from Lieutenant to Patrolman. Phillips argues that the Commission's decision was arbitrary, capricious, and not based on substantial evidence. He also emphasizes that the Commission failed to enter any findings of fact or conclusions of law. Finding that sufficient factual findings can be inferred from the Commission's decision and that the decision is based on substantial evidence and neither arbitrary nor capricious, we affirm."

Law - "Case Shows Limits of Sex Offender Alert Programs "

In all 50 states, registries of sex offenders have grown sophisticated and accessible in recent years, a response to high-profile attacks on children. People can search their neighborhoods for former convicts on state-run Web sites, sign up for private services that alert them if an offender moves nearby, even download an iPhone application, “Offender Locator.”

But the case of Phillip Garrido, the California man accused of kidnapping a young girl and holding her captive for 18 years, is reigniting a debate about the usefulness of the government-managed lists and whether they might create a false sense of public safety.

Mr. Garrido, who had been convicted of kidnapping and rape in the 1970s, was listed, as required, on California’s sex-offender registry (complete with a description of the surgical scar on his abdomen and his 196-pound weight) and had dutifully checked in with the local authorities each year for the past decade — all while, officials say, his victim and the two children he is accused of fathering with her were living in his backyard.

Sex offender lists have made far more information readily available to the public and the police than before, but experts say little research is available to suggest that the registries have actually discouraged offenders from committing new crimes.

And some experts say that the lists may lead people to presume that anyone registered must also be elaborately monitored, when, in truth, monitoring ranges enormously from place to place and state to state. In some cases, it amounts to little more than an offender mailing a postcard with his address to a police department once a year.

“We’ve come to see these registries as a panacea that is going to resolve all sex offender problems,” said Richard Tewksbury, a professor of justice administration at the University of Louisville who has written extensively about the effects of registries. “That’s just not realistic.”

In some jurisdictions, officials tend to focus much of their attention on the estimated 100,000 former offenders nationally who fail to register, give false addresses or disappear, and less on the hundreds of thousands, like Mr. Garrido, who comply. And while some authorities have extensive contact with their registered offenders (Illinois has special monitors who follow those deemed most dangerous for life, looking for even subtle signs of crimes), those in some other states spend little time with offenders once they have filed an address.

Federal efforts to create a single, consistent registration system have been slowed by states’ concerns about mounting costs, legal challenges and other issues. Deadlines for states complying with a federal plan approved by Congress in 2006 have been delayed a year, until July 2010.

A convicted sex offender who assumed a dead man's identity -- apparently to avoid the state's sex offender registry -- was resentenced Monday to 26 years and six months in prison.

David M. Harris, 55, told Judge Don Daniel of Tippecanoe Circuit Court that he plans to appeal Daniel's decision. But Harris admitted that he knowingly committed the crimes.

"I realize I did do wrong," he said. "I just hope there was no undue hardship. ... I'm going to say sorry and hope to move on in the future."

Harris was found guilty of felony counts of forgery, application fraud, identity deception and failure to register as a sex offender after a bench trial before Daniel in July 2008.

He also was found guilty of misdemeanor failure to possess a valid Indiana driver's license or identification card, a requirement that took effect July 1, 2006.

The Indiana Court of Appeals, however, dismissed two convictions against Harris earlier this summer, ordering that Harris be sentenced again.

It found that Harris was not guilty of application fraud because the prosecutor's office could not prove that he applied in Tippecanoe County for a driver's license under the name of Richard Blair.

The unanimous higher-court opinion also ruled that Harris does not have to carry government-issued ID because his two convictions for child molesting occurred before the new law took effect.

Tippecanoe County had been applying that legislation to all registered sex offenders. As of Monday, the "frequently asked questions" portion of Indiana's Sex and Violent Offender Registry did not specify that it applies only to people convicted after July 1, 2006.

Tippecanoe County Deputy Prosecutor Laura Zeman said the discrepancy has not yet been settled by Indiana's upper courts. But she said the Indiana Prosecuting Attorney's Council has advised her office to not prosecute similar cases in the meantime.

Ind. Gov't. - "Could Muncie Mayor Sharon McShurley lose her home?"

Nick Werner of the Muncie Star-Pressreports today in a story that begins:

MUNCIE -- A dispute over Mayor Sharon McShurley's property taxes could result in the county auctioning her home in a tax sale, Delaware County attorney Mike Quirk has warned.
Advertisement

In response, McShurley, a Republican, accused Quirk, a Democrat, of playing politics.

The Delaware County auditor's office has billed McShurley for $7,155 after identifying her as one of more than 60 property owners who have held more than one homestead exemption at a given time.

Homestead exemptions deduct a significant portion of a property's assessed valuation for taxing purposes. A $100,000 property with a homestead credit, for example, would be taxed at $55,000.

Taxpayers, however, are only allowed a homestead exemption for the property they live in.

Auditor Judy Rust determined $7,155 is the amount McShurley underpaid on a rental property for the last seven years, which is as far back as the county's electronic tax records go.

McShurley, who acknowledges she underpaid, has said she plans on paying for only the last three years, arguing Indiana law limits counties from billing taxpayers retroactively any further.

Delaware County attorney Mike Quirk responded that the three-year limitation applies only in situations where a property's assessed value is in question, and not in situations where the property's homestead status is in question.

A spokeswoman for the Indiana Department of Local Government Finance said the DLGF interpreted the law the same way McShurley did.

Courts - Still more on: "You don’t see newspapers fighting to open court proceedings the way they used to, and people are starting to notice"

Updating this ILB entry from yesterday about judges closed the courtroom during jury selection -- the entry ended with a quote from the Louisville Courier Journal story about the ongoing trial of former Pleasure Ridge Park football coach Jason Stinson, who is "charged with reckless homicide and wanton endangerment in the heat-stroke death of PRP sophomore lineman Max Gilpin after he collapsed at an Aug. 20, 2008, practice."

Today's story on the Stinson trial, by Jason Riley of the LCJ, includes this about access to juror selection:

Also on Tuesday, [Judge] Gibson initially ordered the media to leave the courtroom during jury selection. A sheriff’s deputy for several minutes also would not let the media into the courtroom to hear motions on evidence, until a lawyer for The Courier-Journal intervened.

Jon Fleischaker, an attorney representing the newspaper, asked for a hearing, saying the media has a right to attend jury selection.

“The press is the eyes and ears of the public,” he told the judge.

Fleischaker noted the newspaper won a similar argument five years ago when Judge Judith McDonald-Burkman barred the media from the courtroom during jury selection in the murder trial of then Louisville Metro Police Detective McKenzie Mattingly.

Gibson asked for a copy of that ruling and the court took a break.

Later in the afternoon, she agreed to let a Courier-Journal reporter into the courtroom, but said other reporters would have to wait to enter until some potential jurors had been dismissed — only a certain number of people were allowed in the courtroom because of fire codes, she said.

Recall from yesterday's ILB entry that the reason given by the judge in the Presley case, which is now pending before the SCOTUS, was the courtroom "was too small."

Tuesday, September 01, 2009

Courts - "D.C. Circuit Begins Mandatory Electronic Filing "

The U.S. Court of Appeals for the D.C. Circuit is embracing the digital world, joining a growing number of federal appellate courts that are going beyond electronic copies of opinions to post e-copies of other court papers online.

Starting today, the court is requiring lawyers to file all documents electronically, a move that allows 24-hour access to those documents. The court has permitted voluntary electronic filing since June and provided training sessions. * * *

The spokesman for the Administrative Office of the U.S. Courts, Dick Carelli, said two other federal appellate courts set up mandatory e-filing earlier this year—the 9th and 10th circuits. The 4th Circuit has been using mandatory electronic filing since June 2008. The 1st Circuit is expecting to require mandatory electronic filing by January 2010.

Carelli said there’s an expectation that electronic filing will help court employees better manage cases. Many federal district courts around the country already require it.

There is no plan in the D.C. Circuit—not now at least—to post audio of oral argument online.

Ind. Decisions - "Lap-Band Surgery to be Covered By Pizza Shop"

The August 6th COA decision in PS2, LLC, D/B/A Boston's Gourmet Pizza v. Adam Childers (ILB summary here) is the subject of this story today on the WSL Channel ("the Weight Loss Surgery Channel"). Some quotes:

Lap-Band surgery is not the type of procedure one might expect to be covered by worker’s compensation. But, an Indiana pizza shop is being forced to pay for a worker’s weight loss surgery in addition to his back surgery after he was injured on the job. The ruling raises the question of whether companies will start to shy away from hiring obese employees.

An Indiana pizzeria worker is set to undergo both back surgery and Lap-Band surgery as part of a worker’s compensation arrangement after being injured during work. The surgeries, according to a ruling by the Indiana Court of Appeals, will be paid for by his employers.

The Lap-Band details stem from the fact that 25-year-old Adam Childers weighs 380 pounds. Although technically, he was 40 pounds lighter in March 2007, when he was hit by the freezer door in the kitchen of Boston’s Gourmet Pizza, which caused him to fall down and injure his back. For the record, he also smoked 30 cigarettes a day.

The results of the accident reportedly caused Childers heavy back pain that had spread to his legs and was said to require an operation. However, he was medically advised that this operation wouldn’t be successful unless he lost some weight. According to court documents, in fact, his doctor felt that if he lost enough weight, back surgery might even turn out to be unnecessary.

But it had also been finally determined that Childers had been unable to lose weight on his own during the period he had his accident. And so his weight situation at that time, when added to the incident, were found to create a “single injury” status that has made him eligible for both back surgery and the Lap-Band procedure … at the expense of Boston’s Gourmet Pizza.

Ind. Courts - "In court case about path, a loss looks a lot like a win"

Bob Zaltsberg, editor of the Bloomington Herald-Times, reported this story ($$) on August 31st:

Jeff Sagarin has been fighting City Hall. A court ruling last week says he lost.

Depends on your perspective.

Sagarin, a mathematics genius with all the quirkiness that might be associated with such a gift, became incensed and a bit obsessed when he learned in 2007 that an asphalt path the city put on property he now owns may have been built illegally.

The path is also on the property of his neighbor, Shirley Jablonski, who shared his irritation. When notified, the person who owned the home at the time the path was installed, Deborah Campbell, also became miffed.

The women’s anger stemmed from their memories of 1972, when a city official told Mrs. Jablonski and her now-deceased husband, Robert, as well as Mrs. Campbell, that the city had an easement for the property and could build the path without the property owners’ permission. They believed the city official, and the path was built.

When the city informed Sagarin a couple of years ago it planned to widen the path, he went looking for the easement so he would understand his rights.

He couldn’t find it. So he and Mrs. Jablonski went to court.

As they fought on, Sagarin was painted unfavorably by people in the neighborhood who like to use the path. Some people suggested he was heartless because the path was built after two school-aged children were killed on nearby High Street in separate mishaps years apart.

But the facts from news coverage of the events show it is highly suspect the path would have made a difference in either tragedy. Other factors, like a stop sign that wasn’t erected until too late, would have had more direct impact.

Sagarin was an easy target for critics. To strangers, he displays the warmth of a mathematical theorem. But he’s also exceedingly principled and equally persistent.

He fumed over this case because he feels the city took property it didn’t have a right to, and when it learned it had done so wouldn’t admit it. The issue to him has always been abuse of power.

Last week, Judge Steve Galvin ruled against Sagarin, saying he knew the path was there when he bought his home. But that decision is not nearly as important to Sagarin as the ruling Galvin made in favor of his neighbor, Shirley Jablonski, and the harsh words dished out to the city.

“The statements made by the representatives of the City of Bloomington were false and clearly made with the intent to mislead,” Galvin wrote. “... It is clear that the representatives of the City of Bloomington made false and misleading statements to the Jablonskis and to Deborah Campbell concerning the existence of an easement for a path. It is equally clear that they knew these representations to be false.”

Galvin has ordered the city to pay Shirley Jablonski for the land they took from her and her husband, and pay 35 years of interest on the value of the property.

That’s a reasonable conclusion, and vindication for Sagarin. Who cares about a ruling on a piece of paper saying he gets nothing in the case?

He gets the satisfaction of knowing city government didn’t get away with perpetrating a fraud on citizens back in 1972.

The FTC law seeks to prohibit robo calls which promote the sales of goods or services but does not prohibit purely informational calls. An informational call could include an airline notifying a customer of a flight change or a school alerting parents of a snow delay. Politicians, banks, telephone carriers and most charitable organizations are exempt from the federal prohibition on telemarketing calls that deliver prerecorded messages. Also exempt are healthcare professions which are subject to the Health Insurance Portability and Accountability Act (HIPAA).

Indiana law provides added protection by prohibiting the use of autodialer machines to deliver any prerecorded message in all instances when permission has not been provided by the consumer.

"State targets fax-blasting health care insurers" - From the Indianapolis Star, this story by Tom Spalding that begins:

The Indiana Department of Insurance has signed an emergency cease-and-desist order to prohibit three organizations from conducting any insurance-related business in the state.

Smart Data Solutions and American Trade Association, LLC, both of Tennessee, and Serve America Assurance, a company supposedly from Bermuda, were told to immediately stop engaging in any kind of insurance business transactions.

Indiana Insurance Commissioner Carol Cutter said the companies have used a method referred to as “fax blasting” to advertise a potentially bogus health insurance plan called “Healthcare America” that has been the subject of complaints filed with the Department of Insurance, the Attorney General’s office, as well as with corresponding agencies in states all over the country.

Also today, from the Fulton County Daily Report, this story by Greg Land headed "In $2.9 Million 'Blast Fax' Settlement, Plaintiffs Get Coupons and Lawyers Get Cash." It begins:

Business service and supply giant Pitney Bowes has agreed to settle a "blast fax" class action by giving $26 coupons to plaintiffs for each week they received an unwanted fax -- and $950,000 to the lawyers for the class.

The $2.9 million settlement ends a case originally filed in Cobb County, Ga., before being transferred to federal court. It began with Pitney Bowes' 2007 purchase of the corporate assets of Laser Life, a Marietta, Ga.-based supplier of toner and other printer products, according to court filings.

Paula Alvarez, Dustin Decker,
and Saul Garcia were part of a widespread drug conspiracy
that stretched from Chicago to Indianapolis. On
June 20, 2007, a grand jury returned a four-count
second superseding indictment charging twenty-one
individuals with a variety of crimes, including conspiracy
to distribute in excess of 500 grams of methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. A jury found both Alvarez
and Garcia guilty of participating in the conspiracy;
Decker pled guilty. We consolidated the defendants’
cases for appeal.

Because the defendants each played a different role in
the conspiracy, we will analyze their arguments separately.
Alvarez’s arguments represent the bulk of
this appeal, and she challenges both her conviction and
her sentence; Decker challenges only his sentence; and
Garcia’s counsel filed an Anders brief in support of a
motion to withdraw. In the end, we find no error
below and affirm Alvarez’s conviction and the sentences
of both Alvarez and Decker. We also grant Garcia’s counsel’s
motion to withdraw, and we dismiss Garcia’s appeal.

A jury convicted Erik D. Zahursky
of attempting to coerce or entice a minor under the age
of eighteen to engage in sexual activity in violation of
18 U.S.C. § 2422(b). The district court sentenced him to
262 months’ imprisonment and 20 years’ supervised
release. Zahursky appeals his conviction and sentence.
He challenges the denial of his motion to suppress evidence
obtained pursuant to a warrantless search of his vehicle, the admission at trial of certain evidence under
Federal Rule of Evidence 404(b), and the application of
a two-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B)
for unduly influencing a minor. We affirm Zahursky’s
conviction, but vacate his sentence and remand for
resentencing.

James Winbush is a drug dealer,
and he was caught red-handed plying his trade.
Police watched as Winbush sold crack cocaine to a confidential
informant, after which Winbush brandished a
handgun and fled his vehicle. A jury convicted Winbush
of five federal crimes, and he now challenges both his
conviction and his sentence. Despite the commendable
and zealous advocacy of his appointed appellate
counsel, we find no merit to Winbush’s challenges.

John Q. Monroe pleaded guilty
to possession with intent to distribute more than fifty
grams of cocaine base. The district court accepted
Mr. Monroe’s plea. Applying a departure from the mandatory
minimum sentence as permitted by U.S.S.G.
§ 5K1.1 and 18 U.S.C. § 3553, the court sentenced
Mr. Monroe to 168 months’ imprisonment. Mr. Monroe
later filed a motion for a reduction in the length of
his sentence under 18 U.S.C. § 3582(c)(2). The district court denied the motion, and Mr. Monroe subsequently
filed an appeal from that decision. For the reasons set
forth in this opinion, we affirm the judgment of the
district court.

Courts - More on: "You don’t see newspapers fighting to open court proceedings the way they used to, and people are starting to notice"

the case of Eric Presley, a Georgia man convicted of cocaine trafficking. The judge closed the courtroom during jury selection in Mr. Presley’s case, on the theory that it was too small to accommodate both potential jurors and the public. Citing the public’s lack of access to the jury selection, Mr. Presley appealed, and the Supreme Court will soon consider whether to hear his case.

Thanks to The Press-Enterprise, a newspaper in Riverside, Calif., the press and the public have nearly an absolute constitutional right to attend jury selection in criminal cases. In the 1980s, the paper fought ferociously to establish that principle, taking two access cases to the Supreme Court.

The Georgia Supreme Court has approved the routine closure of voir dire to
the public, on the grounds that the trial court has an overriding interest in avoiding
contamination of the jurors. No case-specific findings are needed to support such
closure. This ruling conflicts with the opinions of numerous federal Courts of
Appeal and state appellate courts that do require case-specific findings. This Court
should grant the writ of certiorari to resolve this conflict and to protect the
fundamental right to a public trial.

A considerable number of federal and state appellate courts have held that
those seeking to exclude the public from our courtrooms must demonstrate that
there is no less intrusive means of protecting their asserted interests. But the
Georgia Supreme Court has reached the opposite conclusion, joining what has been
called the "emerging view" and even the "majority view." This Court should grant
the writ of certiorari to end this conflict in the lower courts, and to provide the
"clear guidance" that the Georgia Supreme Court determined was lacking.

Today the Louisville Courier Journal has this continually updated story, originally headed "Judge closes Stinson jury selection to media," that includes these quotes:

Stinson’s attorneys objected to any postponement of the trial, which continued Tuesday with jury selection.
Earlier Tuesday Gibson ordered the media to leave the courtroom during jury selection.
Gibson also refused a request by The Courier-Journal to hold a hearing before closing jury selection, saying it would be too distracting to the selection process.

Ind. Law - It's the Law: Part 2 of "Death penalty explained in three parts"

Ken Kosky's "It's the Law"column in the NWI Times this week is the second of a three-part series on the death penalty. ( Part 1 is here.) This Monday's column looks at looks at how prosecutors decide whether to seek the death penalty:

Porter County prosecutors have charged more than two dozen homicide suspects in the past 20 years but have only sought the death penalty against three.

Of the three, one was a serial killer, one was a serial rapist and killer, and the third masterminded the kidnapping, torture and murder of a young woman who worked as a convenience store clerk.

Indiana law outlines which killers are eligible for the death penalty -- including those who kill while committing a robbery, rape or drug deal -- but Porter County Prosecutor Brian Gensel said prosecutors generally don't seek the death penalty against everyone who is eligible for it.

"The death penalty should be reserved for the worst of the worst," Gensel said.

Gensel said a lot of deliberation goes into the decision about whether to seek the death penalty.

Gensel said prosecutors consider the killer's mental capacity, mental state and history. Prosecutors also consider the "outrage factor" of a particular crime and how the jury would feel about recommending the death penalty for the perpetrator.

And, of course, prosecutors must consider the tremendous expense and scrutiny that comes with a death penalty case. Gensel said a standard murder trial might cost a county $30,000 to $50,000, while a death penalty case could easily cost $300,000 to $500,000 to take to trial. The extra expense results because defendants in death penalty cases are entitled to things such as money for expert witnesses and two experienced attorneys.

If prosecutors get a conviction against a killer in a death penalty case, the case is examined much more closely during the appeals process.

"It's a minefield for prosecutors because there's such scrutiny," Gensel said.

"I'm in favor of (the death penalty) philosophically ... but from a pragmatic perspective, it's fraught with stumbling blocks," he said.

The wishes of the victim's family also factor into prosecutors' decision making. Some families don't want to have to relive the tragedy for years or decades as a death penalty case goes through the appeals process.

Clark County Prosecutor Steve Stewart, a death penalty expert who authored the book, "Death Row 2009: Capital Punishment in Indiana," said the tenacity with which prosecutors seek the death penalty against killers varies from county to county. However, he said the Indiana Prosecuting Attorneys Council's Capital Litigation Committee meets monthly and will review a county's case and recommend to that county's prosecutor whether to seek the death penalty.

Like Gensel, Stewart agrees with the concept. Stewart said those who are put to death can't kill again, and, on a lesser level, it might deter others.

He said death penalty cases have decreased in recent years, due mostly to the cost of prosecuting them and the scrutiny that comes with the appeals process. He doesn't believe publicity surrounding innocent people on death row has caused the death penalty to fall out of favor, noting such cases are extremely rare.

Ind. Gov't. - "Hoosier welfare winners and losers"

The Fort Wayne Journal Gazette has a strong editorial today about the state's welfare privatization contract. The long column concludes:

USDA, which pays about half the state’s costs for administering the food stamp program, questioned the FSSA thoroughly before giving the go-ahead for the privatization deal in 2007, with Indiana officials assuring the feds that they had a contingency plan if things went awry.

The contingency plan, it now appears, was simply to pay more to IBM and ACS. The original contract of $1.16 billion has grown by 15 percent since it was signed in late 2006. IBM has been awarded an extra $47.3 million – some of it to fix the very problems created by its takeover of vital state services. The growing cost is one reason for federal and state lawmakers to remain vigilant; the continuing disservice to Hoosiers who depend on welfare services is an even better reason.

The sole question before us is whether Judge Zore had the authority to set aside his earlier order of summary judgment in favor of Appellees on the same day that he recused himself. Appellants contend that Judge Zore’s order is invalid, as it was issued on the same day as his recusal. Appellees contend that Indiana law does not prevent a judge from issuing substantive orders on a case, even after he had decided that he must recuse himself, unless actual prejudice or bias has been shown.

Environment - "Kentucky and Indiana lead nation in coal ash ponds"

James Bruggers reports in the Louisville Courier Journal - here are some quotes:

Indiana and Kentucky are the nation's top two states for coal ash ponds — and many of the holding basins for the toxic mess were built without the guidance of trained engineers, according to new information from the U.S. Environmental Protection Agency.

The accounting, which found nearly 600 ash ponds across the U.S. — 53 in Indiana and 44 in Kentucky — is based on a survey of the nation's electric utilities that the EPA conducted after a massive December coal ash spill in Tennessee.

While the survey does not identify any of the Kentucky or Southern Indiana ponds as having any significant deficiencies, it found that inspections by state regulatory agencies in Kentucky, Indiana and elsewhere have been spotty. * * *

The Obama administration has promised to adopt national rules for handling coal combustion wastes, including ash and scrubber sludge. But agency spokeswoman Latisha Petteway said Monday that she did not know when the agency might propose new regulations for ash ponds. Regulation now is largely left to individual states.

She declined to comment on her agency's ash pond accounting and would only say that EPA officials are analyzing the findings and will make a report public by Jan. 1.

The EPA reported numerous ponds that had not been designed by an engineer, including three at Duke Energy's Gibson County, Ind., plant, seven Kentucky Utilities ponds scattered around Kentucky, and LG&E's 10 ponds at its Cane Run and Mill Creek plants in Louisville. Some also weren't overseen by a professional engineer during construction. * * *

The EPA's list shows no recent inspections by state regulators at numerous ponds, including some at LG&E's Mill Creek and Cane Run plants in Louisville, and Duke's Gallagher plant.

That's because Kentucky has no mandate to inspect impoundments deemed to be at little or no risk of collapse, said Bruce Scott, commissioner of the Kentucky Department for Environmental Protection. “For high-hazard structures, we inspect once every two years. … So, based on this EPA evaluation, at least for high-hazard structures, Kentucky has done a pretty good job of inspecting those sites in a timely manner.”

There are no requirements in Indiana for routine inspections of ash ponds contained by relatively small berms, which are typical in that state, said Rob Elstro, spokesman for the Indiana Department of Environmental Management.